State v. Fitzgerald
| Decision Date | 04 October 1943 |
| Docket Number | 38555 |
| Citation | 174 S.W.2d 211 |
| Parties | STATE v. FITZGERALD |
| Court | Missouri Supreme Court |
A.C Whitson, of Mexico, and John H. Haley, of Bowling Green, for appellant.
Roy McKittrick, Atty. Gen., and W.O. Jackson, Asst. Atty. Gen for respondent.
BARRETT, Commissioner.
J. L. Fitzgerald, a chiropractor, was convicted of having used certain instruments upon the person of Maude Hinkle with the felonious intent to produce an abortion, Mo.R.S.A. § 4385, and his punishment was fixed at a year's imprisonment and a fine of $ 1,000. On this appeal he urges, first, that he is entitled to be discharged because his demurrers to the evidence should have been sustained and failing in that contention, second, that he is entitled to a new trial because of error in the instructions and error in the admission of evidence.
Our statute in defining criminal abortions contains exceptions, and the information in this case in charging the offense negatively alleges that the instance is not within one of the exceptions. 'the same not being then and there necessary to preserve the life of said pregnant woman, * * * or the preserve the life of an unborn child.' The basis of the appellant's argument that his demurrers should have been sustained (as shown by his motion for a new trial) is not that the state did not otherwise sustain its burden of making a submissible case, but that it failed to sustain its burden of producing substantial evidence in proof of the negative; that is, it failed to prove the nonnecessity of the operation. State v. Smith, 336 Mo. 126, 76 S.W.2d 1077; State v. Smith, 344 Mo. 1129, 130 S.W.2d 550.
Maude Hinkle was fifteen years old and according to her mother had always been a healthy child, at least until June 1942. About that time the mother began to suspect that Maude was pregnant but Maude denied it. Maude began to lose weight, was 'droopy' and seemed to want to lie around, she didn't have any life about her and changes in her physical condition were all noted by the mother. Finally on June 9th or 10th the mother took her daughter to the family physician, Dr. Daniel, at Hannibal, and an examination revealed that she was pregnant, two, two and a half or three months. The doctor had previously removed her tonsils in February and her physical condition at that time was very good. When he examined her in June and made the diagnosis of pregnancy, he found no condition that would necessitate an abortion.
The young man who says he arranged with the appellant for the operation and paid $ 25 for it accompanied Maude to his office in Vandalia on June 19, 1942. Both of them testified to facts from which the jury could reasonably and readily find that the appellant did use instruments upon her for the purpose of inducing an abortion. They left Vandalia late in the afternoon on Friday and went to St. Louis. On Sunday about noon Maude aborted as the appellant had said she would. Subsequently she became seriously ill and was removed to a hospital. She was then toxic, ran a high temperature, was hemorrhaging and her illness was diagnosed as septicemia caused by an abortion. The doctor expressed the opinion that aside from the septicemia he found no other condition for which she would need medical treatment. Other than her immediate condition she was in good health. Maude said that no physician had advised her that she should not have the baby.
The appellant admitted that Maude was in his office on June 19th, but he denied that he used any instruments on her or treated her for the purpose of inducing an abortion. He claimed that he merely examined her and advised her to go to her family physician because his examination revealed a condition indicating that 'something had been done.' The inference the appellant would have drawn was that Maude had attempted to induce an abortion upon herself.
We assume for the purposes of this appeal and without expressing an opinion on the subject that the appellant as a chiropractor is entitled in any event to invoke and comes within the first exception in the statute rather than the second exception that the abortion was not advised by a duly licensed physician as necessary. We make the assumption because that is the point the appellant raised in his motion for a new trial and briefs and argues here. But see and compare State v. DeGroat, 259 Mo. 364, 380, 168 S.W.702; State v. Smith, 344 Mo. 1129, loc. cit. 1134, 130 S.W.2d 550, loc. cit. 553. With this assumption it is unquestionably the rule in this state that the burden is upon the state in this type case to prove the negative, that is the non-necessity of the operation to save the life of the mother or of the unborn child. The two State v. Smith cases, supra. However, our mere recital of the evidence demonstrates that the state did make a prima facie showing of the non-necessity of any such operation. Both lay and professional witnesses stated that Maude was a healthy girl and that they found no condition making such treatment advisable or necessary and Maude said that no physician had advised an abortion as necessary for any reason. There was no evidence to the contrary and neither the appellant nor anyone else claimed such an operation was necessary. The appellant only claimed that he did not perform the operation. Under such circumstances the state's evidence sufficiently proved the non-necessity of the operation (State v. Gunther, Mo.Sup., 169 S.W.2d 404; State v. Anderson, 298 Mo. 382, 250 S.W. 68; State v. Hawkins, Mo.Sup., 210 S.W. 4), and the case is unlike the Smith cases and State v. De Groat in this respect, where there was no substantial evidence of the non-necessity of the operation or where there was evidence from which the jury could reasonably find the operation was necessary for the health of the mother or the unborn child, consequently the appellant's demurrers were properly overruled.
Closely related to this assignment is the contention that instruction P-4 is prejudicially erroneous because it does not clearly and sufficiently require the jury to find the non-necessity of the operation and in fact assumes that it was not necessary. The instruction is not a model and is not as clear in its requirements as those in State v. Bickel Mo.Sup., 177 S.W. 310, and State v. Anderson, supra, but in the circumstances of this case we cannot say it was prejudicially erroneous. The instruction is rather short and consists of only one sentence. It tells the jury 'if you find and believe from the evidence in this case' that the appellant used and employed instruments upon the person of Maude Hinkle for the purpose and with the intent to produce an abortion 'the same not being then and there necessary to preserve the life of said pregnant woman, if you find she was in fact pregnant, or to preserve the life of an unborn child, if any, and said act not being then and there advised by a duly licensed physician to be necessary for that purpose,' then they were to find the defendant guilty. The appellant does not contend that too great a burden was placed upon him by the instruction's requiring a finding of both exceptions (State v. Fitzporter, 93 Mo. 390, 6 S.W. 223), but, as we understand it, his contention is that the instruction is a duplicate of the one recently disapproved by this court in State v. Decker, 340 Mo. 972, 104 S.W.2d 307, 310. And, as to phraseology there is not much difference. The instruction does not, as we have indicated, have a phrase immediately preceding the non-necessity clause specifically directing the jury's attention to the clause and thereby directly requiring the jury to specifically and separately find the non-necessity of the operation. Neither does it contain the connective phrase requiring the jury to find 'and that he,' the defendant, was not then and there engaged in an act necessary to preserve the life of the mother of the unborn child as the instruction in State v. Anderson, supra, did. But even so the instruction cannot be said to be prejudicially erroneous. In the first place, though not as clearly as it should have, the instruction is subject to the interpretation that among the other things the jury was to 'find and believe from the evidence' was the non-necessity of the operation and, if so, they were not misled by it. In the second place, and that is the important respect in which this case differs from State v. Decker, there was uncontradicted, substantial evidence in this case of the non-necessity of the operation, while in the Decker case, as the court stressed in discussing the instruction, 'Defendant's evidence, if believed, * * * warranted a finding by the jury that the operation was within the express exceptions set forth in the...
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