State v. Dewey

• Decision Date: 18 January 1956
• Citation: 292 P.2d 799,206 Or. 496
• Parties: The STATE of Oregon, Respondent, v. Dr. H. R. DEWEY, Doris Hofstra and Johanna Eizama, Appellants.
• Court: Oregon Supreme Court

Page 799

292 P.2d 799

206 Or. 496

The STATE of Oregon, Respondent, v. Dr. H. R. DEWEY, Doris Hofstra and Johanna Eizama, Appellants.

Supreme Court of Oregon.

Jan. 18, 1956.

Leo Levenson, Portland, argued the cause and filed a brief for appellants.

Robert M. Christ, Deputy Dist. Atty., for Multnomah County, Portland, argued the cause for respondent. On the brief were John B. McCourt, Dist. Atty., for Multnomah County, Charles E. Raymond and James J. Kennedy, Deputy Dist. Attys., for Multnomah County, Portland.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK and LATOURETTE, JJ.

LUSK, Justice.

The appellants, Dr. H. R. Dewey, Doris Hofstra (spelled Hoffstra in the indictment) and Johanna Eizema, and others, were jointly indicted of the crime of 'committing an act grossly disturbing the public peace and health, openly outraging public decency and injurious to public morals,' alleged to have been committed as follows:

'The said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, on the 30th day of April, A.D. 1951, in the County of Multnomah and State of Oregon, then and there being and then and there unlawfully conspiring, confederating and agreeing with each other thereto, did on the said day in the said county and state, wilfully and wrongfully set up, equip, furnish with apparatus, and thence continuously until the 26th day of June, 1951, and ever since said time, keep and maintain a certain public place, known as the Dewey Clinic, in the Alisky Building, in the City of Portland, said county and state, with the intent and purpose of them, the said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, of wilfully, wrongfully and unlawfully committing, producing and procuring abortions in said public place, upon women pregnant with child, and so having set up, furnished, equipped, kept and maintained said public place with the intent and for the purpose aforesaid, the said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, did on the 25th day of June, 1951, in the said public place known as the Dewey Clinic in said county and state, wilfully and wrongfully commit and produce an abortion upon one Ila Cowles, she, the said Ila Cowles, then and there being a woman pregnant with child, and did then and there between the 30th day of April, 1951 and the 26th day of June, 1951, and ever since said time, wilfully and wrongfully commit and produce upon woman then and there pregnant with child, the names and numbers of which women are to the Grand Jury unknown, abortions contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The indictment charges a violation of ORS 161.310, generally known as the 'Nuisance Statute.' State v. Nease, 46 Or. 433, 440, 80 P. 897.

The defendants first hereinabove named were convicted as charged and have appealed from the consequent sentence.

The questions raised by the defendants' first contention, viz., that the indictment does not state facts sufficient to constitute a crime, because the statute under which the prosecution was brought is void for vagueness and because the indictment charges acts for which punishment is expressly provided by the Code, are set at rest by our recent decision in State v. Elliott, Or., 277 P.2d 754 (rendered after the briefs in the present case were filed), which reaffirmed the doctrine of State v. Atwood, 54 Or. 526, 102 P. 295, 104 P. 195. Because of the decision in the Elliott case learned counsel for defendants waived the contention at the oral argument.

As a second assignment of error the defendants assert that the court committed reversible error in overruling defendants' objections to the admission of certain testimony which it is claimed was incompetent under the rules of res judicata or estoppel by judgment. One of the acts charged in the indictment was that on June 25, 1951, the defendants did 'wilfully and wrongfully commit and produce an abortion upon one Ila Cowles, she, the said Ila Cowles, then and there being a woman pregnant with child.' Ila Cowles was called as a witness by the state. Before she testified the prosecuting attorney informed the court that the defendant, Dr. H. R. Dewey, along with the defendants, Doris Hofstra and Johanna Eizema, had been indicted for the crime of manslaughter by abortion performed upon Ila Cowles and that Dewey had been separately tried on the charge and acquitted. At a later point in the trial the record in that case was received in evidence. It showed that the indictment was returned July 6, 1951, and a judgment of acquittal of the defendant, Dr. H. R. Dewey, entered December 17, 1951. The indictment in the case now under consideration was also returned July 6, 1951, but the trial was not commenced until June 1, 1953.

After having advised the court of this situation, the prosecuting attorney stated that the purpose of the testimony to be given by Ila Cowles was to show arrangements made with the defendants in connection with their business of performing unlawful abortions. Over appropriate objections of counsel for the defendants the court permitted the witness to testify to the following effect: She stated that her home was in Eugene, that she was a married woman with two children, and that on June 25, 1951, she was pregnant with child and in good health, and on that day went to the Dewey Clinic (the name under which the defendant, Dr. H. R. Dewey, operated) to have an abortion. She saw the defendant, Doris Hofstra, in the office and showed her a slip of paper, whereupon Doris Hofstra said:

'Oh, yes, there isn't anything to it. We give abortions all the time. We're the only ones that give it with an anesthetic. There is nothing to it. We do it all the time for girls from California and they go home in about four hours.'

Acting under the instructions of the defendant, Doris Hofstra, the witness, Ila Cowles, put on a hospital gown and waited for about an hour in a small room in the defendants' suite. The defendant, Dr. H. R. Dewey, finally came and made a pelvic examination and told her she was three months pregnant. She said that she was only two months pregnant. After that Mrs. Hofstra told her that the charge would be $310, but the witness said that she did not have that much money, and Mrs. Hofstra then came down in her price to $210. The witness said that she would have to see her mother-in-law, who had accompanied her to Portland from Eugene and was waiting for her in the automobile. Mrs. Hofstra said that there would be a charge of $10 for the examination. The witness paid this amount, sought out her mother-in-law, and, finding that between the two of them they had $180, they both went to the Dewey Clinic with the money, paid it to Dr. Kenneth E. Dewey (one of the defendants), and, at his demand, delivered to him her wrist watch to secure payment of the remaining $30. Dr. Kenneth E. Dewey also required the witness and her mother-in-law to sign a printed form concerning which he said, 'You know, this is outside of the law, and you have to sign this to protect us if anything should happen.' The witness did not know what the words on the printed form were. Thereupon, the witness, acting under Dr. Kenneth E. Dewey's instructions, went into the same little room and put on a hospital gown, and was told to he down and sleep if she could. The witness further testified that on a second visit to the Dewey Clinic she saw several little rooms with cots in them and another room in which there was an operating table with stirrups on the side that you could raise and lower. She testified that when Dr. H. R. Dewey made the pelvice examination he had tools like a doctor. This is as far as the testimony of the witness, Ila Cowles, went concerning her experience with the Dewey Clinic.

Mrs. Clara Brown, the mother-in-law of Ila Cowles, corroborated the latter insofar as she had first-hand knowledge of the facts to which Ila Cowles testified.

Additional evidence relating to this issue was given by Donald Arthur Cowles, husband of Ila, and Robert Vernon Mollett, a former police officer. They both testified to a conversation in the former's home on July 2, 1951, between Cowles and the defendants, Doris Hofstra and Johanna Eizama, and which was overheard by Mollett, who was listening in another room to which the voices were carried by means of a microphone that had been installed for that purpose. According to this testimony the named defendants said they were nurses for Dr. Dewey. Cowles testified:

'They said, 'you know the type of business we do. It is over the grapevine. And the irony of it all is that we do policemen and court house wives and district attorney's office.''

Mollett testified that he heard the defendant, Johanna Eizama, make this statement:

'Well, she mentioned that he had probably heard of the type of thing they did by the grapevine and she didn't actually name it by name except at one point she did mention there was a great deal of commotion in Portland and that the irony of the whole thing was that they did, they had as patients the wives of police officers and people from the court house at Portland for the same sort of thing.'

The prosecuting attorney stipulated that the foregoing testimony of Ila Cowles, Mrs. Clara Brown, Donald Arthur Cowles and Mollett was in substance given by them in the trial of the defendant, Dr. H. R. Dewey, for manslaughter by abortion.

Although the inadmissibility of the foregoing evidence is urged on behalf of all the defendants, the objection can in no event be available to any of them other than Dr. H. R. Dewey, for he alone was acquitted of the charge of manslaughter by abortion.

The argument of counsel for the defendants proceeds...