State v. Dunklebarger
| Decision Date | 23 October 1928 |
| Docket Number | 38840 |
| Citation | 221 N.W. 592,206 Iowa 971 |
| Parties | STATE OF IOWA, Appellee, v. HAROLD DUNKLEBARGER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Lyon District Court.--C. C. BRADLEY, Judge.
The defendant was convicted of the crime of attempting to produce a miscarriage, in violation of Section 12973 of the present Code. From such judgment he has appealed.
Reversed.
Fisher & Riter, for appellant.
John Fletcher and Neill Garrett, for appellee.
The prosecutrix is Grace Gately, who in September, 1925, at the age of 15 years, became pregnant. The wife of the defendant is the aunt of the prosecutrix. It is not claimed that the defendant was in any manner responsible for the condition of the prosecutrix. On that question, the case has a dark background, which was not penetrated at the trial. But nothing therein reflects in any degree upon the character or conduct of the defendant, preceding the alleged offense for which he is prosecuted. Nor does the State claim otherwise. When Grace was 10 years old, her mother died, survived by her husband, John Gately, and three children, of which the oldest was Grace. The family lived upon a farm near Rock Rapids, and continued to so live after the death of the mother. Mrs. Gately left surviving her, also, two sisters, Mrs. Jaeger and Mrs. Dunklebarger. Mrs. Jaeger and her husband lived on a farm near by, and Mrs. Dunklebarger and her husband lived in the city of Rock Rapids, occupying a small apartment therein. The two sisters of the dead mother mothered the little family of their deceased sister to the utmost of their ability. In December, 1925, rumor came to the ears of the aunts that the child, Grace, had been defiled, and was then in pregnant condition. This discovery resulted in a conference between the aunts and their husbands, and Ray Gately (brother of John Gately) and his wife. No conference appears to have been had with the father of Grace. The result of the conference was that Grace was taken by Mr. and Mrs. Jaeger to Dr. Chalmers, in the town of George, for an examination. This examination resulted in a verification of their fears. This occurred on the 7th day of December, 1925. Later, and about the middle of December, Dr. Wallace, of Rock Rapids, was consulted. The defendant participated in this consultation. The purport of this consultation was that Grace was in a highly nervous condition, and was threatening to kill herself, and was complaining of much pain. The doctor gave them two prescriptions of medicine,--one was a sedative, and the other a laxative. These prescriptions were filled, and the medicine was used for two or three weeks, without apparent benefit. In the meantime, according to the testimony for the defense, the nervous condition continued, and many apparent efforts were made by Grace to injure herself by jumping from an elevation of 8 or 10 feet in a haymow, and by the use of instruments upon her person. On Sunday night, January 10, 1926, she was brought to the city of Rock Rapids by the two uncles, Jaeger and Dunklebarger, for a consultation and further examination by Dr. Wallace. An examination was made by Dr. Wallace by the use of a speculum, whereby he discovered, as he claims, that the fetus was already dead, and that a miscarriage was inevitable, according to the course of nature. After the examination, Grace returned to the home of the Jaegers, and on Tuesday morning following, a miscarriage resulted. In the making of the examination by Dr. Wallace, the defendant, Dunklebarger, held the light for the doctor, at his request. This is the act which constitutes the gist of defendant's alleged crime.
Many grounds of reversal are assigned by the appellant. The more important one raises the question of the sufficiency of the evidence to sustain the conviction, and we turn our attention thereto.
I. The defendant was a laboring man, working for wages in the engineering department of Lyon County. So far as appears from the record, he had no motive of self-protection, and no interest to subserve in any of the matters hereinafter recited, other than the interests of the child, herself. Dr. Wallace was a physician, duly admitted to practice, and in good standing, and had been engaged in the practice in Rock Rapids for 45 years. Section 12973 of the present Code provides:
The indictment in this case charges that the attempt was made only by the "use of an instrument." No charge was made that any drug was used. From our foregoing preliminary statement, it is manifest that Dunklebarger could not be guilty of the alleged crime unless Dr. Wallace was likewise guilty thereof. The court, in effect, so charged the jury by Instruction No. 7. The ultimate question submitted by the court to the jury was whether the defendant aided and abetted Dr. Wallace in the commission of the offense charged. The court also charged the jury that the State must prove, not only that Dr. Wallace intentionally produced the miscarriage, but that said miscarriage was not necessary, to save the life of prosecutrix. In a later instruction, the court also advised the jury that, if Dr. Wallace in good faith believed that a miscarriage was necessary to save the life of the patient, or if he in good faith believed that the fetus was already dead, then, in such event, the defendant must be acquitted. We direct our inquiry, therefore, to the sufficiency of the evidence to prove the guilt of Dr. Wallace in the premises.
Dr. Wallace testified that his examination disclosed a condition which must result in miscarriage, in the ordinary course of nature; that an early consummation of such result would tend to the security of the patient's life; and that delay would increase the mortal risk. The major fact of such condition was that the fetus was already dead. The question whether miscarriage was necessary to save the life of the patient was necessarily, upon this record, a question of medical opinion. The question whether the fetus was living or dead could be a controlling feature as the basis of medical opinion. If the fetus were in fact dead, then all the medical opinion concedes that miscarriage was inevitable ultimately, and that the sooner it were accomplished, the safer the patient. Even if the fetus were still living, there might be other conditions which would create a division of medical opinion on the question of necessity, for the saving of life. Inasmuch as the question of necessity can ordinarily be determined only by medical opinion, it follows naturally that a physician who examines a patient must form an opinion in good faith, and must act upon it in like good faith. It follows also that, if a regular physician does make an examination, and does form an opinion, and does act upon it, he is entitled to the presumption of correct judgment and good faith, until the contrary be proven. The burden was upon the State, not only to prove that the operation was not necessary to save the patient, but that Dr. Wallace did not in good faith believe that it was necessary. This rule was recognized by us in State v. Shoemaker, 157 Iowa 176, 138 N.W. 381, as follows:
See, also, State v. Moon, 167 Iowa 26, 148 N.W. 1001. In State v. Aiken, 109 Iowa 643, 80 N.W. 1073, we said:
This presumption, as applied to a regular physician, was recognized in State v. Rowley, 198 Iowa 613, 198 N.W. 37, where we refused to recognize such presumption in favor of one who was not a regular physician. With this rule of burden of proof before us, we turn to the evidence pertaining to the specific issue now under consideration. The prosecutrix testified as follows:
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