State v. Elliott

• Decision Date: 23 November 1955
• Citation: 206 Or. 82,289 P.2d 1075
• Parties: The STATE of Oregon, Respondent, v. Dr. Ross H. ELLIOTT, Appellant.
• Court: Oregon Supreme Court

Page 1075

289 P.2d 1075

206 Or. 82

The STATE of Oregon, Respondent, v. Dr. Ross H. ELLIOTT, Appellant.

Supreme Court of Oregon, En Banc.

Argued and Submitted March 30, 1955.

Decided Nov. 23, 1955.

Leo Levenson, Portland, for appellant.

Horace B. Fenton, Deputy Dist. Atty. for Multnomah County, Portland, 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.

LUSK, Justice.

The defendant, Dr. Ross H. Elliott, a chiropractor, was convicted of the crime of an attempt to commit manslaughter by abortion and has appealed. The indictment charged the crime of manslaughter by abortion committed as follows:

'The said Dr. Ross H. Elliott, and Jane Doe, whose true name is unknown on the 1st day of December, A. D. 1948, in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully, feloniously, willfully and purposely, administer to and cause to be taken by one Rose Marie Brown, certain dangerous and pisonous drugs and medicines, the names and more particular description of which said drugs and medicines are to the Grand Jury unknown, and use and employ in and upon the body and womb of her, the said Rose Marie Brown, certain instruments a more particular description of which said instruments is to the Grand Jury unknown, she, the said Rose Marie Brown, being then and there a woman pregnant with child, with intent then and there on the part of them, the said Dr. Ross H. Elliott and Jane Doe, whose true name is unknown, thereby to destroy said child, it not being then and there necessary in order to preserve the life of her, the said Rose Marie Brown, the mother of said child, to so administer said drugs or medicines or so use or employ said instruments or to destroy said child, and did then and there by means of such dangerous, poisonous drugs and medicines so administer to her, the said Rose Marie Brown, in the manner aforesaid, and by means of said instruments so used and employed in and upon the body and womb of her, the said Rose Marie Brown, in the manner aforesaid, inflict upon the said child within the body and womb of said Rose Marie Brown, certain mortal wounds, bruises, lacerations and mortal sickness, and did thereby and in the manner and by the means aforesaid cause and produce the death of the said child.'

At the conclusion of the testimony the defendant moved for a directed verdict of acquittal on the ground that the state had failed to prove all the essential elements of the crime charged, or of any lesser and included crime. The state thereupon conceded that it had failed to prove that the defendant caused the death of a child, and abandoned the charge of manslaughter by abortion but contended that the evidence showed an attempt to commit that crime. The court denied the motion for a directed verdict, and submitted to the jury the issue of attempt. The ruling is the basis of defendant's first assignment of error.

The evidence is very clear that Rose Marie Brown on December 1, 1948, at the time an unmarried woman, thinking herself pregnant, went to the office of the defendant for the purpose of procuring an abortion; that the defendant, after examining her, told her there were signs of pregnancy, and agreed to perform an abortion for $100, which she paid him the next day, December 2. On that day, and again on December 3 and December 4, the defendant, by the use of an instrument which the inserted in the womb of Rose Marie Brown, attempted to remove a fetus which he supposed to be there. The fact was that the prosecutrix was pregnant, but the pregnancy was not in the womb but in the Fallopian tube--an ectopic pregnancy, as it is frequently called. This fact was discovered when Rose Marie Brown, being actuely ill, was taken to a hospital on December 27, 1948. Dr. Enrest A. Movius operated by making an incision in her abdomen, and a tubal pregnancy in the right tube was removed.

In addition to the foregoing, the evidence would justify findings to the following effect: that a tubal pregnancy, when it can be diagnosed, should be terminated for the sake of the mother, but it is not usually diagnosed prior to rupture of the tube; that it is possible for a tubal pregnancy to rupture and carry on as an abdominal pregnancy all the way to term and for the child to be delivered by a Caesarean section with the result of a live mother and a live child; that there may be a pregnancy in the uterus and in the tube at the same time, and products of conception may be found in the uterus even though the pregnancy is in the tube; that scraping of the uterus would not remove a tubal pregnancy.

Under this evidence it is the contention of the defendant that the circuit court erred in denying his motion for a directed verdict because, as it is asserted (1) 'No crime is committed if the act attempted or consummated was necessary to preserve the life of the woman. Therefore proof by the state of the existence of an ectopic or tubal pregnancy which endangered life and required surgery, justifies a dismissal of the case for failure of proof of the corpus delicti.' (2) 'There can be no conviction for an attempt to violate a statute unless the state proves all the essential elements of the substantive crime. In this case the state failed to prove the corpus delicti by its failure to prove that the woman was pregnant with a child in the uterus.'

The statute under which the indictment was brought was O.C.L.A. 23-408, now ORS 163.060, and is as follows 'If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter.'

(1) A conviction of the substantive offense thus defined could not stand if there were no proof of the negative element, 'unless the same shall be necessary to preserve the life of such mother'. 'The same' in this case refers to the use of an instrument by the defendant for the purpose of removing a fetus (as we shall call the product of conception) from the womb. There is inconsistency in the testimony of the two medical witnesses who testified for the state as to whether on December 2, 1948, removal of the fetus from the tube was necessary to preserve the life of the prosecutrix, although it is certain that that necessity arose later. The defendant introduced no evidence. If it be assumed that on December 2, 1948, removal of the fetus from the tube was necessary to preserve the life of the mother, and that, if the defendant on that day had either attempted or accomplished such an operation he would for that reason have had a complete defense to a prosecution for such an act, it by no means follows that the same thing is true of the case which is actually here for decision, for the curetting of the womb could not remove a fetus in the tube, and, while that act of thed efendant's might have endangered, it certainly had no tendency to preserve, the life of the prosecutrix. At least, the jury could have so found.

Even had there been a normal pregnancy which the defendant had actually terminated or attempted to terminate, the proof would have been sufficient to support the jury's verdict on this issue. It was shown by uncontradicted evidence that on December 2, 1948, the proxecutrix was in very good health, and such evidence, in view of the presumption 'that a pregnant woman would give birth to a child naturally and survive afterwards', was, as we held in State v. Ausplund, 86 Or. 121, 127, 167 P. 1019, 1021, sufficient to take the case to the jury on this point. The decisions cited by the defendant are not in conflict with this holding. State v. Dunklebarger, 206 Iowa 971, 221 N.W. 592; State v. Shoemaker, 157 Iowa 176, 138 N.W. 381; State v. Aiken, 109 Iowa 643, 80 N.W. 1073. It is true that in the Dunklebarger case the court held that testimony of the prosecutrix that she was in good health was not sufficient to sustain the state's burden of proof. But there the doctor who performed the operation, and who was not the defendant, testified as to his diagnosis and that the operation was necessary to preserve the life of the prosecutrix, and the Iowa court held that the diagnosis of a regular physician could not be negatived by the kind of testimony given by the prosecutrix. There is no evidence in this case to overcome the prima facie showing made by the state.

(2) The defendant's contention that the evidence is insufficient because the state failed to prove one of the elements of the crime of manslaughter by abortion, to wit, that the prosecutrix was pregnant with child in the womb, requires a consideration of the law of criminal attempts.

As a part of this contention the defendant argues that a tubular pregnancy is not comprehended by the words of the statute 'pregnant with a child.' Language in the opinion in State v. Atwood, 54 Or. 526, 531, 102 P. 295, 104 P. 195, is relied on. But it should be remembered that in no case dealing with criminal abortion has this court been faced with the problem of any other than a normal pregnancy. It is not improbable, indeed, that Blackstone, whose reference to an infant 'in its mother's womb' (1 Blackstone, Commentaries (Lewis' ed.) 118) was quoted in the Atwood case, knew nothing of a tubal pregnancy. Chapter 556, § 1(g), Or. Laws 1953, cited by the defendant, which relates to the revocation of a chiropractor's license and in which an abortion is said 'to mean the removal from the womb of a woman the product of conception at any time prior to the delivery of the child', is, of course, without application to an act that occurred in 1948. We may, however, put all this to one side and...