State v. Cox

• Decision Date: 23 November 1938
• Docket Number: 27159.
• Citation: 84 P.2d 357,197 Wash. 67
• Parties: STATE v. COX et al.
• Court: Washington Supreme Court

84 P.2d 357

197 Wash. 67

STATE v. COX et al.

No. 27159.

Supreme Court of Washington

November 23, 1938

Department 2.

Harry D. Cox and Lois Brandon were jointly charged by information with the crime of abortion. Harry D. Cox was convicted and he appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Wm. A Huneke, judge.

Davis Heil & Davis and Joseph J. Lavin, all of Spokane, for appellant.

Ralph E. Foley, C. C. Quackenbush, and Harvey Erickson, all of Spokane, for respondent.

SIMPSON Justice.

Defendants Harry D. Cox and Lois Brandon were jointly charged by an information filed by the prosecuting attorney of Spokane county with the crime of abortion. The offense was alleged to have been committed upon Mildred Funk on or about the 30th day of January, 1938.

Upon the trial the jury found defendant Harry D. Cox guilty. The motion for a new trial having been made and overruled judgment and sentence were entered, from which defendant Cox appeals.

Appellant makes the following principal assignments of error: (a) The court erred in refusing to grant the motion of appellant for a directed verdict made at the close of the state's case and at the conclusion of all of the testimony introduced; (b) error was committed in the giving of two instructions; (c) in the refusal to give three instructions requested by appellant; (d) in giving one instruction and later withdrawing it from the consideration of the jury; and (f) in denying appellant's motion for a new trial.

The defendant Brandon, just prior to the reception of any evidence, through her attorney, made a statement to the court in chambers and in the presence of the attorneys for the state and the appellant, the pertinent part of which was as follows:

'* * * that defendant Brandon's attorney will not interfere with the selection of jurors by the state and the attorneys for Dr. Cox; that defendant Brandon's attorney will not call any witnesses on her behalf; third, that defendant Brandon's attorney will not cross examine any witnesses called by either the state or Dr. Cox; that defendant Brandon's attorney will not object to misconduct on the part of the attorneys for the state, except that it violates the terms of this agreement; that defendant Brandon's attorney will not address the jury; that defendant Brandon's attorney will object to her being called as a witness on behalf of either the state or the defendant Cox throughout this proceeding; that defendant Brandon will enter a plea of guilty at the conclusion of all of the testimony in this case.'

The agreement was understood and consented to by the prosecuting attorney and counsel for appellant. The jury was then impaneled, and evidence taken, Lois Brandon being present with her attorney. The jury had no knowledge of the agreement to which we have just referred.

In passing upon questions concerning the admissibility of testimony and in the giving of its instructions, the court was careful to advise the jury that they must disregard and not take into consideration any evidence or admissions, either written or oral, made by Lois Brandon, not made in the presence of appellant.

The evidence submitted by the state may be summarized as follows: Appellant is a sanipractor duly licensed as a drugless physician under the law of this state.

As a result of illicit relations with one Clarence Sandall, Mildred Funk, an unmarried woman twenty-three years of age, became pregnant. Desiring to have an abortion performed, Miss Funk and Sandall visited Mrs. Brandon at her home in Spokane during the first part of July, 1937. The Brandon home had, in addition to a kitchen, reception room and five bedrooms, an operating room which was equipped with an ordinary operating table and certain surgical instruments. Mrs. Brandon was advised of the pregnancy and was asked about the amount of money she would require to perform the abortion. Appellant was present at the Brandon home on that occasion and, after he had talked to Mrs. Brandon in the kitchen, came into the operation room where Miss Funk was sitting, and told her that he could not perform the operation unless 'they had the fifty dollars first.' Sandall and Miss Funk, being unable to agree with Mrs. Brandon with respect to the charge for the operation, left her home and had the abortion performed by another.

After the first abortion had been performed, Miss Funk and Sandall resumed their illicit relations, and she became pregnant a second time. January 29, 1938, the young woman accompanied by Sandall again went to the Brandon home and made financial arrangements for the performance of the second abortion. At that time Mrs. Brandon, by means of a syringe, injected certain substances in the sexual organs of Miss Funk, packed them with cotton or gauze, and told her to return as soon as certain reactions were present. Early the next morning Miss Funk returned to the Brandon home, and was put in a bed in a room occupied by another girl, referred to as the 'blond girl.' Later in the morning of that day appellant came into the house by way of the back, or kitchen door, and after a consultation with Mrs. Brandon went into the room occupied by the two girls. When appellant came into the bedroom he said to the blond girl, 'Well, how do you feel today?' She answered, 'All right.' He said, 'Have you started to flow or cramp any?' He was told, 'No, not yet. Well, Doctor, what time do you suppose I will be ready to fix?' The appellant stated: 'Well, I will fix you up between one and two o'clock this afternoon.' Appellant then turned to Miss Funk and said: 'I guess I am to be your doctor, too.' Shortly afterward Miss Funk was taken into the Brandon surgery and strapped on to the operating table. Appellant then proceeded to use certain surgical instruments in the performance of an operation upon the sexual organs of Miss Funk, the description of which it is not necessary to relate, except to say he curetted a portion of her sexual organs, including the womb, and removed certain membranous tissue and afterbirth. Curettement was defined by the medical experts as the 'emptying of any of the bodily cavities.' Miss Funk was then returned to her bed by Mrs. Brandon, and the doctor left the house. During the day a sister of Miss Funk notified the police officers of the city of Spokane of the fact that the abortion had taken place, and they went to the Brandon home and arrested Mrs. Brandon and Miss Funk. Several weeks later appellant was arrested. Miss Funk was taken from the Brandon home to the police station, and from there to a Spokane hospital where she was attended by Dr. Lien. Dr. Lien, a witness for the state, testified that the removal of the membranous tissue and the afterbirth with surgical instruments would constitute a part or portion of an abortion. Miss Funk was healthy in every respect, and Dr. Lien testified that she was perfectly capable of bearing children and that there was no necessity for an abortion to be performed in order to save her life or that of the child. Appellant was friendly with Mrs. Brandon, visited her home and stables many times, and was permitted on various occasions to ride horses owned by her.

At the close of the state's case appellant moved the court for a directed verdict on the ground that the state had wholly failed to make out a case. That motion was denied.

The evidence of appellant contradicted in every respect that of the state. He testified that he was not present at the Brandon home in July, 1937, and had not seen Miss Funk on that date, or at any time prior to January 30, 1938; that he was not in the bedroom in the Brandon home on the date last mentioned, and did not talk to a blond girl as related by Miss Funk. He stated that he stopped at the Brandon home January 30, 1938, while on his way to see some horses owned by Mrs. Brandon which were kept in a stable a short distance from her home; that his only purpose in stopping was to inquire about one of the horses in which he was very much interested. He stated that he entered the house through the kitchen door, and talked with a man who was sitting at a table; that Mrs. Brandon came into the kitchen while he was talking and said that she 'had a little patient there she wished he would come in and look at.' His testimony was to the effect that Mrs. Brandon told him that the girl had been sent to her by another physician in the city of Spokane; that the girl was suffering; that she had telephoned to the home and office of the doctor who had sent the girl to her, but could not locate him, and for that reason wanted the appellant to examine her patient; that shortly after his conversation with Mrs. Brandon he went into the operating room of the Brandon house and saw the girl, Miss Funk on a table; that she was flowing freely and in apparent pain. That in caring for her he used some instruments supplied by Mrs. Brandon, and carefully removed the fetus which had passed into the vagina, some blood clots, and a piece of membrane protruding out of the cervix. He said that what he did was an emergency, not a part of an abortion operation, but was done to protect the health and life of Miss Funk. Appellant was corroborated by several witnesses in his contention concerning his interest in the horses owned by Mrs. Brandon and his stated purpose in stopping at her house.

At the conclusion of the introduction of all the evidence appellant again moved for a directed verdict, which was denied by the court. As soon as the case had been concluded, and Before the court instructed the jury, Lois Brandon, true to her promise and agreement, entered a plea of guilty.

The first question presented is whether the evidence presented a question for the jury. Rem.Rev.Stat. § 2448, provides:

'Every...