State v. Clements

• Decision Date: 13 June 1887
• Parties: STATE v. CLEMENTS.
• Court: Oregon Supreme Court

14 P. 410

15 Or. 237

STATE v. CLEMENTS.

Supreme Court of Oregon

June 13, 1887

Appeal from circuit court, Baker county.

Olmstead & Snow, for appellant.

Ramsey & Bingham, for respondent.

THAYER J.

The appellant herein was indicted, tried, and convicted, in said circuit court, of the crime of manslaughter, alleged to have been committed by producing an abortion upon one Lena Dakota from the effects of which she died on the thirty-first day of August, 1886, at Huntington, in said Baker county. The deceased was a young unmarried woman; had been stopping for some little time at the hotel at Huntington; was taken violently sick a few days before her death, and died evidently of hemorrhage from the uterus, caused by the recent expulsion of a foetus. The appellant was a practicing physician at Huntington, and, as such was treating the deceased at the time of her death that on the morning of her death he locked the door of her room, passed out from the hotel, and remarked to some one that she was sleeping quietly, and that he did not want her disturbed; that a few hours afterwards, about 9 o'clock A.M., he came back to the hotel, called some one from the door of her room, and stated "that Lena was dying;" that he was immediately arrested, placed in irons, and put in charge of the constable, and, on his way from the hotel, stated to the constable in charge to come with him to his office; that he had something to show him that they proceeded to the prisoner's room, where he exhibited to the constable a foetus, of which he said the deceased had been delivered. The appellant, at about the time the deceased was first taken ill, exhibited in the drug store to the druggist, a stout sharpened quill, about six inches in length, being bloody, and having the appearance of having been recently embedded in living animal tissues, which he claimed to have taken from her room, and stated to the druggist: "I want you to examine this. I may need it for my protection. I am afraid this case will get me into a scrape yet. Some woman has been using this for a criminal purpose." A post mortem examination was held, and it was found that there was some abrasion of the interior walls of the uterus, or scratching, apparently caused by some rough instrument, but that the injuries were slight. In the room of the deceased were also found numerous drugs; some bearing marks of "Druggist's Prescriptions of Kansas City Mo.," others from druggists in Idaho territory; and others prescribed by the appellant,--the latter being only such prescriptions as would be used in ordinary obstetrical cases; that there was no indication of deceased having met her death by abortion produced by the use of drugs.

John Williams (colored) was called and sworn on behalf of the state, and testified as follows: "Was in Huntington, August 31, 1886. Been there ever since. Was first cook in the hotel at Huntington. I knew the deceased while she was at the hotel. She died August 31st of this year. I last saw deceased alive on Monday before her death, about 4:30 o'clock. She was lying upon the floor. Appeared to be very sick. I had brought her some lemonade. Asked her what was the matter with her. I said to her, 'You are a very sick woman.' The boy was coming up with some ice-water. The door was open. She raised her head, and I asked her what was the matter. She said she was sick at her stomach. I says, 'Yes, Lena; you are a very sick woman.' I picked her up, and laid her on the bed. Asked her if I had not better telegraph to Baker for a doctor. She said, 'No; Johnny would be in in the morning, and he could send to Wood River for a physician.' " He was then asked the following question by counsel for the state: "What did she say was the matter with her?" The witness in answer thereto said: "I asked her if the doctor had used instruments on her." The appellant's counsel thereupon duly objected to the witness answering the question. The court ruled that the question might be answered, if the state would connect the statement of the deceased with some act of the appellant with the commission of the crime. Subsequently said witness was recalled by the state, and asked the following question: "State what, if anything, she [[[referring to the deceased] said about having instruments used upon her, [[[referring to the time mentioned in his former testimony?]" The appellant's counsel objected to the question as irrelevant, immaterial, and incompetent; that no foundation had been laid for introducing the same, either as a part of the res gestoe, or as a dying declaration. The court overruled the objection, to which an exception was allowed, and the witness answered: "I asked her if the doctor had used instruments upon her. She said, 'Yes.' " It appears, also, that appellant, during the time he attended on the deceased, misrepresented the cause of her illness.

This seems to be the substance, so far as I can gather from counsel's briefs, of the proof upon the part of the state.

The appellant was a witness in his own behalf, and testified that the deceased applied to him on the twelfth of August, 1886, to perform an abortion on her; that he refused absolutely to do it, and gave his reasons. He also testified that some 10 or 12 days prior to the death of the deceased she called upon him to treat her professionally, claiming about some derangement of the uterus; that he made an examination; found a sponge imbedded in the tissues in the mouth of the womb; that he used a metallic speculum and forceps, and removed the sponge; that he found the place occupied by the sponge lacerated, the sponge covered with pus, and very offensive; that he treated her for about six days, and dismissed the case; that he saw nothing more of deceased until the twenty-fifth of August; that he was then called by her; that she complained of nausea of the stomach, and pains in the abdomen, and, upon being questioned, denied having made any attempt of abortion; that symptoms rapidly disclosed themselves indicating labor pains; that he prescribed an anti-abortive treatment; that there were no other physicians in reach with whom to consult, and deceased had no means to employ medical assistance; that he continued such treatment; that deceased also informed him that she had made an attempt to accomplish a miscarriage by inserting a quill into the uterus, and told him where the quill could be found, and which was shown to be the same quill before referred to; that thereafter, on the night of the thirtieth of August, deceased gave birth to a dead foetus; that for a considerable time prior to this the deceased was in such a condition that to have exposed the cause of her illness would have resulted in a nervous shock extremely dangerous to her life; that appellant removed the foetus, and its appendages, and afterwards surrendered them to the officer, as shown on the part of the state; that he administered opiates to the deceased, placed her in bed for the purpose of her securing repose, gave directions that she should not be disturbed, left the hotel, and went to his breakfast. Upon his return, in about an hour afterwards, found her dying; uterine hemorrhage having set in during his absence, and caused her death.

The appellant assigns a number of grounds of error, which counsel have discussed fully. They relate to the insufficiency of the indictment; the introduction of improper testimony at the trial; misconduct of the judge in making an improper remark during the trial prejudicial to the appellant; in giving improper instructions to the jury; and in refusing instructions asked by the appellant's counsel; in denying the appellant's motion to set aside the verdict; and in refusing testimony offered by appellant's counsel at the trial.

The one relating to the insufficiency of the indictment was passed over at the hearing without argument; and the one denying the motion to set aside the verdict we cannot consider upon this appeal. This court long ago held that a matter of that character is not reviewable. Counsel, however, continue, from time to time, to persist in urging such questions upon the consideration of this court, and seem to think that, unless they are able to raise them, judgments are liable to be given without sufficient evidence in law to sustain them. But such results are not liable to follow if counsel will properly present them. This court will not uphold a judgment where the evidence is not sufficient in law to justify its rendition, if the question is properly made, which can be done by a motion at the trial to discharge the defendant upon that particular ground, and including all the evidence in the bill of exceptions tending to establish his guilt. So, also, a question regarding the sufficiency of the proof of a particular fact in the case may be reviewed here; but it must be raised by an exception at the trial. Should the trial court say to the jury that if they found such and such facts, and there was no sufficient evidence in law to authorize such finding of all or any one of the facts thus submitted, an exception in either case could be saved, and made available. All the evidence, however, would have to be certified to this court, bearing upon the same, in the statement of the exception; and the statement in such case must purport to contain all the evidence upon the point. This court has nothing to do with the rulings of the lower court upon a motion for a new trial, or to set aside the verdict of the jury. It deals only with questions of law, and they must be squarely presented as such.

In the shape the evidence in this case is in, we cannot determine its sufficiency. I have only attempted to set out the appellant's testimony from what appears in his brief. That is doubtless stated as favorably...