State v. Davis, 10637
Decision Date | 30 March 1954 |
Docket Number | No. 10637,10637 |
Court | West Virginia Supreme Court |
Parties | STATE, v. DAVIS. |
Syllabus by the Court.
1. 'A verdict of guilty in a criminal case, which is without sufficient evidence to support it, will be set aside by the appellate court.' Syl. 6, State v. Hudson, 128 W.Va. 655 .
M. E. Boiarsky, Wm. L. Lonesome, Charleston, for plaintiff in error.
John G. Fox, Atty. Gen., James C. Blanton, Sp. Asst. Atty. Gen., for defendant in error.
GIVEN, President.
DeWayne F. Davis, a physician and surgeon, was indicted by a grand jury of the Intermediate Court of Kanawha County. The indictment charged that the defendant, 'did feloniously counsel, hire, procure, aid and abet' two women whose names were unknown to the grand jury, in the commission of a criminal abortion upon the body of a girl of the age of sixteen years.
The jury returned a verdict finding him guilty as charged in the indictment. After overruling a motion to set aside the verdict and a motion in arrest of judgment, the Intermediate Court of Kanawha County sentenced him to confinement in the penitentiary for an indeterminate term of not less than three nor more than ten years, and he, having been denied a writ of error by the Circuit Court of Kanawha County, prosecutes a writ of error to this Court.
The girl upon whose body the abortion was committed, will be hereinafter referred to as the prosecutrix. The prosecutrix and her sister, a married woman, consulted a physician and surgeon to determine whether the prosecutrix was pregnant. That physician, after two consultations and examinations of the prosecutrix, diagnosed pregnancy, at least tentatively.
According to testimony adduced by the state, the prosecutrix and her sister thereafter consulted the defendant. In the month of October, 1951, the defendant was informed that the prosecutrix was pregnant and he was asked if he could give the prosecutrix any treatment for the purpose of terminating the pregnancy. At first the defendant replied in the negative. He was then asked if he knew any person who could 'do something.' He again replied in the negative. The defendant then administered to the prosecutrix some five 'shots', or injections. The drug or combination of drugs used in such treatment is not disclosed by the record. For this treatment, the defendant was paid some amount in excess of $50.
After such treatment by injections, the pregnancy not having been terminated, the defendant was requested to direct the prosecutrix and her sister to some person who would perform an abortion. The defendant informed the prosecutrix and her sister that he would not perform the operation. But he told the prosecutrix and her sister that he would get in touch with someone and would let them know, and at the same time, he told them that it would cost approximately $125.
The defendant instructed the two women to go to a place on or near the corner of Washington and Court Streets in the City of Charleston at the approximate hour of 7 o'clock p. m., sometime during the month of October, 1951. He further instructed them that the husband of the sister was to get out of the automobile, put his foot on the front bumper and have the lights of the automobile burning. The two women and the husband of the sister went to the appointed place, but the husband did not put his foot on the front bumper of the automobile. Thereupon, the sister of the prosecutrix informed her husband of the telephone number of the defendant. The husband called the telephone number given him and was directed by some person in a telephone conversation that he was to come back the next night, leave the lights on and get out of the automobile and stand with his foot on the front bumper of the automobile. Those instructions were obeyed. On this being done, two women drove by them in an automobile and accosted the prosecutrix, her sister and her brother-in-law. The prosecutrix having left the automobile in which her sister and brother-in-law were sitting, entered the automobile with the unknown women. She was taken to a place in or near South Charleston. On her way, however, a young boy entered the automobile who addressed one of the women by a name which sounded like 'Winfree'. When the prosecutrix and the two women reached the apartment in or near South Charleston and after entering such apartment, the prosecutrix was given an external and internal alcohol bath. She was then placed on an ironing board, and a long slender instrument with a hook on the end of it was inserted into her uterus and vaginal tract, causing her considerable pain. Immediately thereafter, the prosecutrix's vagina was packed with gauze. After an absence of about an hour and forty-five minutes, she returned to the car in which her sister and brother-in-law were waiting for her at the corner of Washington and Court Streets in the City of Charleston.
In the meantime, the two women had been paid the sum of $100 in cash. After her return to her sister and brother-in-law, she was taken to the home of her sister in Dunbar where she remained for three days, still carrying the gauze packing. At the expiration of that time, the gauze was partially expelled and the prosecutrix removed all of the remaining gauze from her vagina. Upon the removal of the gauze packing, the prosecutrix passed some blood of which there were some clots. Among these clots was a human foetus. She slowly recovered and her reproductive organs resumed their normal functions sometime in December, following. There is evidence that the actual abortion took place on the 26th day of October, 1951.
The foregoing are the facts as established by the evidence adduced by the state.
The defendant denied that he had ever seen either the prosecutrix or her sister. He denied that he had given the prosecutrix any injection of medicine, drugs or a combination of drugs. The remainder of the defense is in the nature of an alibi.
The defendant is a physician connected with West Virginia State College. He testified that he is the senior physician at that institution. He shows by oral testimony and documentary proof that he left the City of Charleston on a Chesapeake and Ohio Railroad train at 10:45 p. m., October 18, enroute to Washington, D. C. He stayed in the City of Washington at the Statler Hotel from the morning of the 19th of October, 1951, until he left the City of Washington at approximately 6 o'clock p. m., October 21, 1951, on a train operated by the Chesapeake and Ohio Railroad, enroute to Charleston. He arrived in Charleston, West Virginia, at approximately 3:25 on the morning of October 22, 1951.
The defendant testified that he was arrested about 4:30 p. m. January 19, 1953, by two members of the Department of Public Safety; that he went to the barracks of the State Police in South Charleston and was then taken to the Kanawha County jail where identification was made. He was then asked by an investigator of the prosecuting attorney's office if he would go to his own office. The defendant testified that he went to his own office without objection and that two members of the Department of Public Safety and the investigator looked over his office but did not make a detailed search. After that he was taken to the office of the Clerk of the Intermediate Court where he gave bond for his appearance.
The testimony of other physicians was adduced by the defendant who testified concerning the effects of certain drugs, prostigmine, ergotrate and pituitrin. In general, the testimony of these physicians was to the effect that such drugs would not cause an abortion.
Many errors are assigned by the defendant as a basis of reversal, many of which are without merit. The errors assigned and argued in the briefs are: The trial court erred in refusing to require the state to file a bill of particulars; in overruling a demurrer to an indictment and a motion to quash same; in refusing to direct a verdict for the defendant after the taking of the testimony was ended; in refusing to set aside the verdict; in refusing to give defendant's instructions numbered 9 and 10 as offered and in giving such instructions numbered 9 and 10 as amended; in overruling a motion for a mistrial because of remarks of the assistant prosecuting attorney; in admitting improper evidence offered by the state and in refusing proper evidence offered by the defendant.
The assignment of error based on the overruling of the motion to require the state to file a bill of particulars is argued at some length in the brief. The defendant contends that the state knew from the evidence of the prosecutrix, that one of the unknown women was addressed by a name that sounded like 'Winfree', and that such information should have been given the defendant by a bill of particulars. This testimony relative to the name by which one of the women was addressed, was elicited by defendant's counsel on cross-examination of the prosecutrix. There is nothing in the record disclosing that the state was in possession of that information. The allowance of a bill of particulars rests within the sound but reviewable discretion of a trial court and unless the defendant has been prejudiced, a refusal of the bill of particulars does not call for reversal. State v. Counts, 90 W.Va. 338, 110 S.E. 812; State v. Joseph, 100 W.Va. 213, 130 S.E. 451; State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265. See Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545.
The law, with reference to bills of particulars, applies alike to criminal and civil cases. State v. Lewis, 69 W.Va. 472, 72 S.E. 475. In some instances, it is error to refuse a bill of particulars, as in the case of State v. Baltimore & O. Railroad Company, 68 W.Va. 193, 69 S.E. 703, but the record in the instant case is nowise similar to the case of State v. Baltimore & O. Railroad Company, supra. See State v. Greater Huntington...
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