State v. Fitzporter

• Citation: 16 Mo.App. 282
• Parties: STATE OF MISSOURI, Respondent, v. J. L. FITZPORTER, Appellant.
• Decision Date: 25 November 1884
• Court: Court of Appeal of Missouri (US)

16 Mo.App. 282

STATE OF MISSOURI, Respondent,

v.J. L. FITZPORTER, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1884.

APPEAL from the St. Louis Court of Criminal Correction, NOONAN, J.

Affirmed.

JAMES M. LORING, for the appellant.

J. R. CLAIBORNE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The defendant was indicted under section 1268, Revised Statutes, for using an instrument, the name of which was to the grand jurors unknown, upon the body of Annie Fanger, she being a pregnant woman, with intent to commit an abortion. He was found guilty, and his punishment was assessed at a fine of $500.

The testimony for the state tended to show that the defendant had, at the request of the prosecutrix, Annie Fanger, in consideration of divers sums of money by her paid to him, amounting to $95 in all, committed an abortion upon her by the use of a steel instrument. Testimony for the defendant tended to show that he had neither committed nor attempted to commit an abortion upon her, but that he had at her request treated her for a disease of the womb, and that the instruments which he had used upon her were not instruments which are used in committing abortions, but were instruments which are used in examining and treating women who are afflicted with disease of the womb. The defendant also introduced testimony tending to show that the prosecutrix had demanded of him the repayment of the money which she had paid him for thus treating her, claiming that his treatment had done her no good, and that, after the finding of this indictment, she had brought an action before a justice of the peace, alleging in her complaint that he had obtained this sum from her “by means of fraudulent representations and devices.” At the trial the prosecutrix, testifying as a witness for the state, admitted that she could not say but that she was still enceinte. The trial took place less than three months after the alleged abortion.

1. One of the grounds on which a new trial was claimed was newly discovered evidence. In support of this ground of the motion for a new trial, the defendant introduced the affidavit of Harriet Jones, who testified that, on or about December 10 or 15, of 1883, the affiant had an interview with the prosecutrix, in which the prosecutrix told affiant that she was not at all satisfied with what the defendant had done for her; that she had paid him a good sum of money, and that he had not done for her what he had agreed to do, but that she was still in a family way, and meant to have her revenge by prosecuting him criminally. Affiant stated that she had never seen the defendant until February 13, 1884, which was about a week after the trial, at which time she had informed him of this conversation with the prosecutrix. The affidavit was supported by that of the defendant, to the effect that Harriet Jones had for the first time informed him of this conversation with the prosecturix, on February 13, 1884; and, that it was not owing to a want of diligence on his part that the knowledge did not come to him sooner.

We are clear that these affidavits did not disclose ground for a new trial. The testimony of the absent witness for appellant would not probably have changed the result. It did not, to any degree, tend to show that the defendant was not guilty of the crime charged in the indictment, namely, an attempt to commit an abortion. It rather tended to show the reverse, namely, that he had made the attempt, had received money of the prosecutrix for making it, and had not been successful. Aside from this, it was merely cumulative, and its purpose was merely to impeach the prosecutrix as a witness by showing that she had made statements contradicting those which she had made upon the witness-stand. It is well settled that newly discovered evidence of this kind is not ground for a new trial. The State v. Schumacher, 12 Mo. App. 569.

2. The indictment charged that the offence...