State v. Choate

• Decision Date: 25 February 1948
• Docket Number: 2
• Parties: STATE v. CHOATE
• Court: North Carolina Supreme Court

46 S.E.2d 476

STATE v. CHOATE

228 N.C. 491

No. 2

Supreme Court of North Carolina

February 25, 1948

Criminal prosecution upon two bills of indictment one (No. 17A) charging abortion under provisions of G.S. s 14-45, upon, and the other (No. 17B) murder of a certain named woman, consolidated for trial.

Defendant in apt time moved to quash the bills of indictment on the ground that there was and could not have been competent evidence before the grand jury and that the bills were returned upon hearsay and incompetent evidence. Motion denied. Defendant excepted.

Defendant pleaded not guilty.

On the trial in Superior Court, the State offered evidence tending to show that pursuant to pre-arrangement with defendant the woman named in the bills of indictment accompanied by paramour, went by automobile, operated by her from Charlotte, North Carolina, to the office of defendant in Sparta, North Carolina, arriving after dark on Friday night 23 August, 1946, for purpose of being treated so as to bring about an abortion, and that she was so treated by him at that time, and given medicine to take according to directions, and 'pills for pain'; as a result of which she died Sunday morning, 25 August, 1946, at a hotel in Elkin, North Carolina.

The defendant, as a witness for himself, denied that he treated the woman, as the State's evidence indicated. He testified that he is a physician and lives in Sparta, North Carolina; that in August 1946 his office was on Main Street; that his brother Leff, also a physician, has office on same floor in the same building where his office is--just one front door, and one reception room,--but his office is on the right as you go in, and Dr. Leff's is on the left, both back of the reception room; that he was not at his office on Friday night, 23 August, 1946; that he did not see the woman in question until she was brought in an automobile to the front of his office on Saturday morning, 24 August, 1946, about 10 or 10:30 o'clock,--the man with her--referring to her as his wife--saying 'We want a shot'; that after examining her, his findings indicated to him she needed something to stimulate her instead of dope, and he prescribed accordingly for her; that that was the only thing he did or advised, and that he 'did not at any time on any occasion administer any drug or use any instrument to bring about any premature birth or abortion on' the woman named in the bills of indictment.

Then on cross examination defendant was asked in detail if he had performed abortion upon several named women, including Mrs. Walter Phillippi, Mrs. Gilmer Stewart and Mrs. Oscar Crouse, daughter of Mrs. John Cox, at certain times covering a period of years--and if as result thereof one of them, Mrs. Crouse, had died on 16 June, 1932. Defendant denied that he had performed abortion or given medicine to produce abortion on any one of the women.

After the defendant had closed his evidence and rested his case, the State called to the witness stand one after the other, Mrs. Walter Phillippi, Mrs. Gilmer Stewart and Mrs. John Cox, whose testimony, respectively, is the subject of exceptions by defendant.

Mrs. Phillippi testified: 'I live above Speedwell, Rural Retreat, Virginia. I know Dr. Choate. I went to his office in July about two years ago. ' 'Q. Did Dr. Choate treat you? ' Objection--overruled--Exception. 'A. You all know what he done '. On objection the answer was stricken out, and the jury instructed to disregard the statement. But, over objection and exception by defendant, these questions and answers follow: 'Q. Now, don't answer this until they have an opportunity of objecting. What, if anything, did you pay Dr. Choate? A. $35. Q. I beg your pardon? A. $35. ' The court instructed the jury that this evidence is not admitted for consideration as substantive evidence bearing upon the issues in the case now being tried, but is competent for consideration only as it may tend to impeach, if it does, the jury, to determine whether or not it does tend to impeach the testimony given from the witness stand by the defendant Choate. Defendant again excepts.

Also for like purpose and under like restriction, Mrs. Stewart, as witness for the State, was permitted to testify: 'I live at Speedwell, Virginia. I have seen Dr.

Choate '. And over objections and exception by defendant these questions and answers were permitted: 'Q. Where did you see him? A. I have seen him in his office in Sparta; that was two years ago in July. Q. Mrs. Stewart, who, if anybody went with you to Dr. Choate's office? A. Annie Phillippi, the lady who just testified on the stand. Q. Did Dr. Choate treat you? A. Yes.'

And, for like purpose and under like restrictions, Mrs. John Cox as witness for the State: '* * * I had a daughter named Dora who married Oscar Crouse. She is not living now. I know Dr. B. O. Choate, the defendant '. Then over objections and exceptions by defendant, these questions and answers follow: 'Q. Did Dr. B. O. Choate come to your home prior to your daughter's death? A. Yes, sir'

Then after the examination of two witnesses, whose testimony was short, the evidence closed. The record discloses that thereupon defendant renewed his motion for judgment as of nonsuit, and the court stated: 'I'll rule on that * * *; there's one feature of the evidence that I am a little disturbed about. I may make a modified ruling on that later.'

The court then, Wednesday afternoon September 24th, recessed until Thursday morning, September 25th, when upon the convening of court the court instructed the jury as follows:

'Gentlemen of the jury, pay particular attention to the instruction which the Court is about to give you:

'Upon the cross-examination of Dr. B. O. Choate, the defendant, he gave testimony tending to show that he did not know Mrs. Walter Phillippi and Mrs. Gilmer Stewart, and that he had no knowledge or recollection of having treated them, or either of them. Also, upon cross-examination, the defendant gave evidence tending to show that he may have seen Mrs. John Cox, but that he had no knowledge or recollection of having treated her daughter.

'The State, later, called as witnesses Mrs. Walter Phillippi, Mrs. Gilmer Stewart and Mrs. John Cox. Mrs. Phillippi and Mrs. Stewart were permitted to give evidence tending to show that they had been to the defendant's office, some two years ago, and were treated by him. Mrs. John Cox was permitted to give evidence tending to show that some years ago the defendant was in her home and treated her daughter.

'At the time when this testimony of Mrs. Phillippi, Mrs. Stewart and Mrs. Cox was admitted, the Court instructed you that it was not competent as original or substantive evidence, but was for your consideration only for a limited purpose; that is, as it might tend to impeach the credibility of the defendant as a witness.

'Upon further consideration, the Court is of the opinion, and so rules, that the testimony of Mrs. Phillippi, Mrs. Stewart and Mrs. Cox has no connection with or bearing upon the issues involved in this trial at all, but relates entirely to collateral matters, and, being irrelevant, should be entirely disregarded and excluded from consideration by you for any purpose.

'The Court, therefore, instructs you that the entire testimony of Mrs. Phillippi, Mrs. Stewart and Mrs. Cox is stricken out and withdrawn from your consideration, and the Court instructs you to eliminate the entire testimony of each of these witnesses from your minds and to disregard it as completely as if this testimony had not been given or spoken in your hearing.'

The jury returned a verdict of guilty of criminal abortion as charged in the bill of indictment 17A.

Judgment was pronounced.

Defendant appeals to Supreme Court and assigns error.

Harry M. McMullan, Atty.Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

R. F. Crouse and R. J. Randolph, both of Sparta, and Folger & Folger, of Mount Airy, for defendant-appellant.

WINBORNE Justice.

For determination of questions raised on this appeal, only a few of the points presented require express consideration. These are:

I. The exceptions relating to denial of motions to quash the bill of indictment on the ground thtat there was no competent evidence before the grand jury, and that the bills of indictment were returned upon hearsay evidence:

While it is the settled law of this State that when a bill of indictment has been returned by the grand jury as a true bill, upon testimony all of which is incompetent, or upon the testimony of witnesses all of whom are disqualified by statute or by some well settled principle of law in force in this State, the bill of indictment will be quashed, on motion of defendant made in apt time, it is held that when some of the testimony is competent and some incompetent, or some of the witnesses heard by the grand jury are qualified and some disqualified, the court will not go into the barren inquiry of how far testimony which was incompetent, or witnesses who are disqualified contributed to the finding of the bill of indictment as a true bill. State v. Moore, 204 N.C. 545, 168 S.E. 842; State v. Deal, 207 N.C. 448, 177 S.E. 332; State v. Beard, 207 N.C. 673, 178 S.E. 242; State v. Blanton, 227 N.C. 517, 42 S.E.2d 663. See also State v. Levy, 200 N.C. 586, 158 S.E. 94.

Applying this principle to the case in hand, it is sufficient to direct attention to the fact that, at the time the motions to quash the bills of indictment were made, the record on this appeal fails to show what testimony was before the grand jury, or what the witnesses who were before the grand jury knew about the charge under investigation. Hence, the point raised is not made out, and the...