State v. Evans

Decision Date10 September 1951
Docket NumberNo. 10347,10347
Citation66 S.E.2d 545,136 W.Va. 1
PartiesSTATE, v. EVANS.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. A trial court, being invested with reviewable discretion in the admission of expert testimony, may permit a hypothetical question to be propounded and answered, which permits an answer that a given result could follow a certain act or series of acts, and in which the factual hypothesis is based upon facts admitted, proved, or fairly inferable from other admitted evidence.

2. In a prosecution for criminal abortion, other and similar acts may be shown when closely connected in point of time, which, if true, dislosed a criminal intent on the part of the defendant to commit the act charged. Such acts may be prior to or contemporaneous with the act charged in the instant indictment. Subsequent acts may likewise be shown when accompanied by evidence of prior or contemporaneous acts of like nature.

3. The admission of improper testimony in a trial of a person charged with crime, which does not prejudice the accused, is not reversible error.

4. The evidence in this case is sufficient to sustain the verdict of the jury.

Salisbury, Hackney & Lopinsky, Jackson D. Altizer, all of Charleston, for plaintiff in error.

William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for defendant in error.

LOVINS, Judge.

F. E. Evans, a practicing physician and surgeon, was indicted in the Intermediate Court of Kanawha County, West Virginia, and was tried, convicted, and sentenced in that court of the crime of procuring an abortion on the body of an unmarried female, hereinafter referred to as 'prosecutrix'. He prosecutes a writ of error to this Court.

On or about the first day of January, 1949, the prosecutrix, a student in a Kanawha county high school, between seventeen and eighteen years of age, conceived a child. Realizing her condition on or about March 23, 1949, she interviewed the defendant for the purpose of procuring an abortion. The defendant did not indicate his willingness to perform the abortion, but gave the prosecutrix a card with the name of a woman written thereon and told her to go and see that person. The prosecutrix made an arrangement by telephone to meet the woman the following morning at nine o'clock. Pursuant to this arrangement, she went to see the person, hereinafter designated as 'woman', and told her that she wanted an abortion performed upon herself, and arranged with the woman to meet her at the defendant's office on the following morning at nine o'clock.

The prosecutrix went to the office with her cousin at the appointed hour, waited for a time, then started to leave the office; but on leaving she met the woman whom she had theretofore interviewed and returned to the office of defendant. After a short wait the prosecutrix went into the consultation room of the defendant with the woman. The prosecutrix paid the woman the sum of $75.00. The prosecutrix was placed on an examining table, her eyes were covered, and her face was wiped with a cold towel. She testified that she felt a sharp pain in her abdomen. She remained in defendant's consultation room for about ten minutes, left defendant's office accompanied by the woman and her cousin, started down the stairs to the street level and fainted. She was then taken back to defendant's office, the automobile in which she was traveling was brought to the street entrance to defendant's office, and the prosecutrix, her cousin, and the woman got in the automobile and went to the woman's home. During that time the woman told her to take a laxative.

The alleged abortion was performed on Wednesday. On the following Friday morning the prosecutrix emitted a small amount of blood from her genital organs, and, on the following Saturday, she went to the office of defendant.

On occasion of her third visit to defendant's office, during her stay of fifteen minutes, she told him about the emission of blood. Defendant advised her that she was 'all right'. On the Tuesday following she returned to school where she was a student. During the rest of the school term she engaged in her usual activities and graduated in June, 1949.

After her graduation the prosecutrix went to work as a waitress in a restaurant in Charleston, West Virginia. While working as a waitress she went to another doctor, ostensibly to be examined for the procurement of insurance, and this physician disclosed to her that she was pregnant.

Prosecutrix testified that about two weeks before the birth of her child she emitted water and blood from her genital organs. On or about the 30th day of June, 1949, she was sent to the Salvation Army Hospital in Charleston where she was delivered of a baby which had been conceived on or about January 1, 1949, as hereinabove stated. The baby lived about fifteen minutes.

The prosecutrix is partially corroborated in the details of her actions by her cousin, her aunt, and other witnesses. The woman who was an eye witness to the treatment of the prosecutrix by defendant, being a practical nurse, testified that defendant used a vaginal speculum. The prosecutrix did not know what was used since her eyes were covered.

When the child was born a considerable portion of the skin on the cranium had been detached from the bone, was necrotic, and had the appearance of having been detached from the cranium as a result of violence. There were also large bruises on the child's legs. Medical testimony on behalf of the state indicates that the child could have been injured on or about the 23rd of March and remained in the mother's womb until its delivery approximately three and one-half months later, one of the physicians who testified having seen the child after its death. No autopsy or pathological examination of the child's body was had. Another physician testified on behalf of the defendant that in his opinion the injury to the scalp, hip and leg of the child could not have been inflicted in March and the child carried in its mother's womb until its delivery on the 30th day of June. The prosecutrix testified that she had done no act to cause an abortion between the time when defendant treated her in March and the date of delivery of the child.

The state was permitted to introduce the testimony of five witnesses, by four of whom it was shown that the defendant had performed abortions on them. The alleged abortion on one of these witnesses occurred about June 18, 1949, approximately three months after the treatment of the prosecutrix. The other three alleged abortions were committed prior to the treatment of the prosecutrix. The testimony of the witnesses with regard to the four alleged abortions was admitted by the trial court upon the theory that it was to show the motive, design and intent of the defendant.

Upon the testimony above stated, the jury returned a verdict of guilty as charged in the indictment and the trial court sentenced defendant to an indeterminate sentence in the penitentiary of this state for a period of three to ten years. A writ of error was denied defendant upon application to the circuit court of Kanawha County, and thereafter this court, upon petition of defendant, granted a writ of error.

The defendant denies that he performed any abortion on the prosecutrix, but does admit treating her, saying that he applied a packing to her vagina. He also denies committing abortions on the four witnesses who were introduced to show motive, design and intent. There is considerable conflict in the testimony as to what he was paid for the aborations. Defendant admits that he was paid small sums from one to five dollars. Witnesses testified that he was paid sums ranging from fifteen to seventy-five dollars. Other testimony was introduced by defendnat to show that he treated indigent persons free of charge.

Defendant assigns many errors, which we summarize: (a) The court erred in admitting evidence offered by the state, and (b) In overruling the motion to set aside the verdict and grant a new trial on the grofund that the verdict is contrary to law and evidence.

The various objections to specific items of evidence will be stated and discussed together. The defendant takes the position that the hypothetical questions propounded to the physicians permitted them to testify as to a possibility rather than a probability, and draws a distinction between what the action of the defendant could cause and what such action would cause. The record shows that the hypothetical questions were propounded so that the witness could frame his answer on what could be the result of the action of the defendant. Authorities are cited to sustain the position taken by the defendant, among which are: 3 Jones Commentaries on Evidence, Second Edition, page 2458; 20 Am.Jur., Evidence, Secs. 787, 788; 32 C.J.S., Evidence, § 551(b); Duvall v. Brooklyn Cooperage Co., Mo.App., 275 S.W. 586; Rogers on Expert Testimony, Third Edition, Sec. 137; Kime v. Owens, 191 Iowa, 323, 182 N.W. 398. In the case of Graves v. Katzen, 112 W.Va. 467, 164 S.E. 796, this Court held that a properly qualified medical expert could testify 'as to the probable future consequences of an injury, provided the consequences anticipated are such as in the ordinary course of events may reasonably be expected to happen, and are not merely speculative or possible.' Testimony by an expert witness is not objectionable for the reason that it relates to whether a given effect might result from a certain cause. Such testimony is not speculative "but is a common and proper mode of examination." Foose v. Hawley Corp., 120 W.Va. 334, 198 S.E. 138, 139. See Rogers on Expert Testimony, Third Edition, Sec. 49; Carroll v. Missouri Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074; Castanie v. United Rys. Co., 249 Mo. 192, 155 S.W. 38, L.R.A.1915A, 1056; Industrial...

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