State v. Cragun
| Decision Date | 14 December 1934 |
| Docket Number | 5116 |
| Citation | 38 P.2d 1071,85 Utah 149 |
| Court | Utah Supreme Court |
| Parties | STATE v. CRAGUN |
Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.
Wiley M. Cragun was convicted of having employed an instrument in and upon a married woman with intent to produce a miscarriage, and he appeals.
REVERSED and REMANDED for new trial.
Woolley & Holther, of Ogden, and Joseph Chez, of Ogden, for appellant.
Geo. P Parker, Atty. Gen., and Byron D. Anderson, Deputy Atty. Gen for the State.
Defendant was charged under section 8118, Comp. Laws Utah 1917 (now 103-2-1, R. S. Utah 1933), in the district court of Weber county with having employed an instrument in and upon a certain designated married woman, whom we shall call the prosecutrix, with intent to produce a miscarriage. A plea of not guilty was entered. Defendant was convicted, and appeals to this court.
Four propositions are presented on the appeal:
I. Was there sufficient corroboration of the testimony of the prosecutrix?
The prosecutrix testified that she was a married woman; that she was the mother of two very young children, of which fact she had informed the defendant; and that, when she first went to the defendant's office on the 28th of January, 1930, she was pregnant and, but for that condition, she was in good health; that defendant examined her, and told her that she had been pregnant for about a month. She asked the defendant if there was any medicine that she could take, and defendant replied that medicine would not do any good; that he could perform an operation and she would be all right. He informed the prosecutrix what the operation would cost, and stated that there would be no danger of her being sick, and that he did not blame her for wanting it done.
She returned to the defendant's office on the 4th of February for the purpose of having the abortion performed, and so advised him and paid him a portion of the agreed fee. At that time she was placed on the operating table in the defendant's office; he inserted an instrument into her vagina, and advised her to return the next day, which she did. On the return visit he used the same instrument which he had used before, and advised her that she would be all right. She then paid him the balance of the fee.
Prosecutrix returned again on the 12th of February, and advised defendant that she was not feeling well, and had not yet started to menstruate. He made another examination, and stated that there was a blood clot in the womb, and, after removing that, advised the prosecutrix to go home and take a douche. After leaving defendant's office on that occasion, she went to another physician, who made an examination and advised her that she was pregnant. She returned to the defendant's office and told him what the other physician had said. The defendant thereupon told her that he would put something in the womb to hold it open, which he did.
On the 15th of February she went to the defendant's office again, this time accompanied by her mother. The two went into the defendant's private office, and he there made an examination of the prosecutrix and told her that her condition was caused by the tipping of the uterus, but that she need not worry, but to go home and see him the following Monday. Prosecutrix and her mother returned on the Monday, when he again examined her and advised her that she was coming down with a cold, and told her to go home and drink lemonade and that everything would be all right.
The mother of the prosecutrix testified that about the 15th of February she went to her daughter's home and saw that she was not feeling very well and accompanied her to the defendant's office. She told the defendant she did not think her daughter was getting along very well, and the doctor replied, "I took out everything that should come out and used a serum so there would be no danger of any infection." That on that occasion he placed the prosecutrix on the operating table, removed her clothing, and used an instrument of some kind in her vagina and that he put something in to hold it open and requested the daughter to return on Monday, the 17th, and that he would then take out what he had put in. The mother accompanied her daughter on that visit, and the defendant at that time told them that the daughter was getting along all right and not to be alarmed.
On cross-examination the mother stated that she did not know of any visits that her daughter made to defendant's office until the 15th of February, when her daughter advised her of what had occurred, that she understood the purpose of going to the doctor's office was for an operation that the doctor had performed for the purpose of procuring a miscarriage, and that on the occasion that she went to the defendant's office with the prosecutrix she saw the defendant pick up an instrument and manipulate it and saw him use it upon the body of the prosecutrix.
There was other testimony tending to show certain admissions made by the defendant. There was also the evidence of other physicians who had examined the prosecutrix subsequent to the first three or four visits which she had made to the defendant's office, which showed unquestionably that prosecutrix was pregnant, and, except for that condition, she was in perfect health and in normal physical condition.
R. S. Utah 1933, 105-32-14, provides:
"Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing or taking away any female of previously chaste character for the purpose of prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence."
We have no difficulty whatever in reaching the conclusion that the testimony of the prosecutrix was sufficiently corroborated.
II. The evidence shows that the prosecutrix requested the defendant to perform the operation, and that she voluntarily submitted herself to him for such unlawful purpose. By so doing, did she become an accomplice in the commission of the crime for which defendant is charged? The defendant requested the court to charge that she was an accomplice. The court declined to so charge but charged that she was not an accomplice. We think the court did not err in so charging. True it is that a defendant charged with the commission of an abortion may not be convicted of such an offense on the testimony of the woman upon whom the abortion is alleged to have been committed, unless her testimony in respect to the commission of the abortion is corroborated by other evidence. But that is so because of the statute above quoted. In the absence of any statutory provision, the defendant may be convicted on the uncorroborated testimony of the woman, as at common law. 1 R. C. L. 87, § 25. It does not follow that, because the woman's testimony must be corroborated by reason of such statute, she therefore stands in the relation of an accomplice to the defendant charged with the commission of the abortion. Although the testimony of the prosecutrix must be corroborated in order to convict, the reason for requiring the corroboration is predicated on an entirely different hypothesis from that falling within the rule relating to accomplice testimony. 1 C. J. 331 § 111, subd. 2.
R. S. Utah 1933, 103-2-1, provides:
"Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take, any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than ten years."
This statute was adopted by this state in 1876, and has been carried forward in every compilation and revision of our Code without amendment or modification, except that the words "state prison" have been substituted for the word "penitentiary." It is substantially declaratory of the common law in respect to abortion.
R. S. Utah 1933, 103-2-2, provides:
"Every woman who solicits any person, any medicine, drug or substance whatever, and takes the same, or who submits to any operation or to the use of any means whatever, with intent thereby to produce a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than one nor more than five years."
This was first enacted and adopted by this state in the Revised Statutes of 1898, and creates a separate, distinct, and wholly statutory offense. Before the enactment of this statute, the woman's acts and conduct condemned by the statute were not regarded as criminal, and she was not subject to prosecution, although her moral delinquency was recognized by the courts in their instructions to juries. Obviously each of the two statutes above quoted defines a separate and distinct offense. It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in R. S. 1933, 103-2-1, supra, and that she could not be prosecuted therefor either as principal or as an accomplice. Says the court in People v. Vedder, 98 N.Y. 630:
"We regard the proposition as too well settled by authority, and too salutary in practice to be now questioned."
The true test of an accomplice is stated in 16 C. J. 673, § 1315, as follows:
"One who could not be convicted of...
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