State v. Brown

• Decision Date: 25 October 1912
• Citation: 26 Del. 499,85 A. 797
• Court: Court of General Sessions of Delaware
• Parties: STATE v. EMANUEL J. BROWN

85 A. 797

26 Del. 499

STATE v. EMANUEL J. BROWN

Court of General Sessions of Delaware, Kent County

October 25, 1912

Court of General Sessions, Kent County, October Term, 1912.

INDICTMENT FOR ABORTION (No. 9, April Term, 1912), alleging, in substance, that the accused, with the intent to procure the miscarriage of one Mary Tibbett, a young married, pregnant woman, supposed by the accused to be pregnant, did administer and prescribe medicine, and use a certain instrument--a tube or cathetar--the same not being necessary to preserve the life of her.

The facts appear in the opinion and the charge. The indictment in substance is stated in the charge.

At the April Term, 1912, counsel for defendant moved to quash the said indictment, because it alleged that the administration or prescription of the medicine was not necessary to preserve the life of Mary Tibbett,--the material allegation being that the miscarriage was not necessary to preserve her life.

This applies to the first two counts.

46 Ind. 303; State v. Jones, 4 Penn. 109, (opinion of the dissenting judge). State v. Quinn, 2 Penn. 339 did not rule upon the question as presented here.

Verdict, not guilty.

W Watson Harrington, Deputy Attorney General, and Caleb S Layton for the state.

Alexander M. Daly and John B. Hutton for the defendant.

PENNEWILL, C. J., and WOOLLEY, J., sitting.

OPINION

PENNEWILL, C. J.

:--The question seems to us to be the same as decided by a majority of the court in the case of State v. Jones. Sustaining the contention of the defense in this case would be practically overruling that case.

Mr. Hutton:--In the case of State v. Parm and Viney, 21 Del. 556, 5 Penne. 556, 60 A. 977, the court held that counseling was not within the statute. That applies to the third count. The objection to the fourth and fifth counts--that the defendant did use a certain instrument upon her the said Mary Tibbett, which is the extent to which the use is alleged--is that that is absolutely an insufficient statement of the manner of using the instrument. Even though there is a general averment of the intent with which it was used, the mere statement that he did use an instrument upon her is not a sufficient statement of the manner in which it was used.

As to the sixth count, counsel for defendant moved to quash the same as indefinite and uncertain, because of the omission in the last part of the count of the name of the person alleged to have been operated upon.

Harrington, Deputy Attorney General, replied, contending, that the objection as to the third count had been passed upon by the court and sustained in a similar indictment, in the case of State v. Quinn, 18 Del. 339, 2 Penne. 339, 45 A. 544, and the other objections had been passed upon and decided adversely in the case of State v. Parm and Viney, 21 Del. 556, 5 Penne. 556, 60 A. 977.

PENNEWILL, C. J.:--

We hold that the first, second, fourth, fifth and sixth counts are sufficient, and the third count is insufficient. The motion to quash is sustained as to the third count, and overruled as to the others.

At the trial, (October Term, 1912) after proving by the prosecuting witness, Mary Tibbett, the facts as alleged in the indictment, the state called one H. as a witness, and offered to prove by him that the defendant upon an occasion near the time when the offense charged in the indictment was committed, also committed an abortion upon the wife of said H. by the same means as charged in the indictment, as tending to show the intent with which the act charged was committed. This was objected to by counsel for defendant as wholly irrelevant and immaterial; but by agreement the evidence was admitted temporarily, subject to be stricken out upon motion of defendant's counsel, and argument at the conclusion of the testimony.

When the testimony was concluded on both sides counsel for defendant moved to strike out the above testimony of H. as inadmissible and irrelevant.

ARGUMENT IN SUPPORT OF MOTION TO STRIKE OUT TESTIMONY.

The general principle of law as laid down in all the authorities is that evidence tending to prove a distinct crime, although it may be similar to the one for which defendant is on trial, is wholly inadmissible. 12 Cyc. 405; 11 Enc. of Ev. 798-799, and many cases cited in thirty-seven different states.

In some jurisdictions evidence of other crimes is admissible to prove motive or intent. Such evidence has been admitted in cases of embezzlement, false pretense, forgery, counterfeiting, receiving stolen goods, murder, etc. 11 E. & E. 802-3-4; 12 Cyc. 408-409.

Evidence of similar crimes is not admissible for the purpose of raising a presumption that defendant committed the particular crime, but only in cases where the intent is material and there is uncertainty as to such intent. 11 E. & E. 799 and note.

In abortion cases we have found no cases in which evidence of similar offenses was admitted. Lamb v. State, (Md.) 66 Md. 285, 7 A. 399; People v. Seaman, 107 Mich. 348, 65 N.W. 203.

Where the intent is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible and violates the rule that the evidence must be confined to the issue. If the instrument was used as testified to on the behalf of the state, there is no room for an inference that it was used for any other purpose than that charged in the indictment; and, therefore, evidence of other offenses to show intent is inadmissible. 122 Mich. p. 388, distinguished from 107 Mich. 348, 65 N.W. 203; People v. Gibbs, 93 N.Y. 470; People v. Stewart, 85 Cal. 174, 24 P. 722.

It is only in those cases where the intent is uncertain that evidence of other offenses is admissible. Lamb v. State (Md.) 66 Md. 285, 7 A. 399; People v. Seaman, 107 Mich. 348, 65 N.W. 203.

ARGUMENT OF STATE, CONTRA.

The doctrine of admissibility of other acts to show knowledge or intent, has been recognized in several cases in this state. State v. Tindal, 5 Del. 488, 5 Harr. 488 (1854); State v. Freedman, 19 Del. 403, 3 Penne. 403, 53 A. 356; State v. Hartnett, 23 Del. 204, 7 Penne. 204, 74 A. 82; State v. Effler, 25 Del. 92, 2 Boyce 92, 78 A. 411.

In the Tindal case, the defendant was indicted for passing counterfeit money, and evidence was admitted of the passing of other counterfeit money, of the same kind at other times, to show guilty knowledge.

In the Friedman case, the defendant was charged with receiving stolen goods. Evidence of other similar transactions was also admitted, to show guilty knowledge. The report of this case does not take up this point, but I am informed that such evidence was admitted.

In the Hartnett case, the defendant was indicted for obtaining money under false pretenses. I am informed that evidence of other similar acts was offered, and while ruled out by the court, it was on the ground of lack of connecting testimony, the rule of law itself was admitted by tacit consent.

In the Effler case, the defendant was indicted for conspiracy to commit larceny, and evidence of similar transactions on other occasions was admitted for the purpose of showing guilty intent.

The case of State v. Records as well as the case of State v. King, tried in Sussex County at the February Term, 1911, not reported, does not contradict the rule to be deduced from the above cases, as the evidence offered in both of these cases was not for the purpose of showing knowledge or intent, but for the purpose of showing a plan or scheme of a general design on the part of the defendants to buy votes, which evidence the court held to be too remote.

In the case at bar the intent of the prisoner is not only the most material element, but it could not be contended that it was shown by the act itself. The alleged acts committed by him would not be criminal unless guilty knowledge and intent existed in his mind at the time. Wharton, p. 516 and 1667.

PENNEWILL C. J., delivering the opinion of the court:

A motion has been made by counsel for the defendant that all the evidence of the witness Hill be stricken out because the rule of law that permits the proof of other transactions by the defendant similar in character to that charged in the indictment, and committed at or about the same time, is not applicable to the present case.

It is undoubtedly the general rule that the prosecution is not allowed to prove the commission of another and distinct offense, though of the same kind with that charged, for the purpose of proving the latter, or for the purpose of rendering it more probable in the minds of the jury that the defendant committed the offense for which he is on trial.

But, wherever the intent with which an alleged offense was committed is a material element of the charge, and such intent becomes an issue at the trial, proof of other similar offenses, within certain reasonable limits, is admissible, as tending to throw light upon the intention of the accused in doing the act complained of.

Wigmore in his work on Evidence (Volume 1, 302) says: "In most cases of conspiracy and fraud, the question of intent, or purpose or design in the act done whether innocent or illegal, whether honest or fraudulent, rarely admits of direct and positive proof; but it is to be deduced from various circumstances of more or less stringency and often occurring, not merely between the same parties, but between the parties charged with the conspiracy or fraud and third persons. And in all cases where the guilt of the party depends upon the intent, purpose or design with which the act was done, or upon his guilty knowledge thereof, I understand it to be a general rule that collateral facts may be examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, purpose...