State v. Dinkelkamp

• Decision Date: 23 December 1918
• Docket Number: No. 20738.,20738.
• Citation: 207 S.W. 770
• Parties: STATE v. DINKELKAMP.
• Court: Missouri Supreme Court

207 S.W. 770

STATE v. DINKELKAMP.

No. 20738.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from St. Louis, Circuit Court; George H. Shields, Judge.

Elizabeth Dinkelkamp was convicted of manslaughter, and she appeals. Reversed and remanded.

Chas. P. Johnson and C. Orrick Bishop, both of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for the State.

WALKER, P. J.

The appellant was indicted in the circuit court of the city of St. Louis under section 4458, R. S. 1909, for manslaughter in the second degree, in producing an abortion upon a young girl, resulting in the death of a quick child.

The evidence on the part of the state was that the girl had been pregnant from 4½ to 6 months before the abortion was performed upon her by appellant, which was effected by means of instruments; that their use caused the expulsion from the womb of a viable fœtus, which expired a few minutes after its birth.

The testimony for appellant consisted, first in an affirmative denial of the commission of the crime, and that when the girl came to appellant for treatment the latter discovered upon an examination that there was a puncture in her uterus from which a watery discharge tinged with blood was issuing, evidencing that the womb had then been invaded by an instrument; that this examination was made with the aid of a spectrum which appellant was accustomed to use in her calling as a midwife; that she did nothing more to the girl, who was then undergoing the initial pains of labor, than to view the parts, wash out the vagina and the womb, and place at its mouth some antiseptic gauze; that, at the girl's utmost solicitation, she permitted her to remain at her house, through sympathy, and some time after 12 o'clock that night she gave birth to the foetus, which was not viable.

Appellant denies having had any conversation with the girl several days before the latter came to her house, as testified to by the girl, in which the conditions under which the appellant was to produce the abortion were agreed to; that the girl came to her house on Friday and remained until the succeeding Monday. Appellant gave much testimony as to her visits and advice to the girl after the abortion, and her conclusions based on her experience as a midwife as to the impossibility, under all the facts, of the girl having been pregnant a sufficient length of time for a quickening of the foetus.

The jury gave credence to the direct testimony for the state, as to the commission of the crime by the appellant and the viability of the fcetus, and refused to credit the testimony of appellant.

I. The motion for a new trial is of the most general nature. Considering errors assigned, however, as though properly preserved, we find that the burden of appellant's contention is as to the sufficiency of the evidence to sustain the verdict, primarily on account of the prior pregnancies of the girl, which appellant claims precluded a like condition a sufficient length of time before the abortion to render the foetus quick. We do not deem it necessary to enter into a discussion as to the relative probative force of the direct testimony and that of experts on behalf of the state, and like testimony on behalf of the appellant on this subject. There was substantial affirmative testimony to sustain the verdict, not only as to the commission of the crime, but as negativing the exceptions of the statute, that the girl was, previous to the abortion, In good health, and that appellant's act in producing same was not advised by a duly licensed physician for the purpose of saving the life of the prosecutrix. It is exceedingly elementary, as a general proposition, that the weight of the evidence is for the jury, and, It being...