State v. De Groat

• Citation: 259 Mo. 364,168 S.W. 702
• Decision Date: 23 June 1914
• Docket Number: No. 18069.,18069.
• Parties: STATE v. DE GROAT.
• Court: United States State Supreme Court of Missouri

168 S.W. 702

259 Mo. 364

STATE v. DE GROAT.

No. 18069.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. ABORTION (§ 11)—EVIDENCE—SUFFICIENCY.

In a prosecution for abortion, evidence, though contradicted in some aspects and opposed to human experience in others and fraught with inferences leading to doubt in yet others, held to warrant a verdict of guilty.

2. CRIMINAL LAW (§ 742)—ABORTION—TRIAL — QUESTION FOR JURY — WEIGHT OF EVIDENCE.

In a prosecution for abortion, the prosecuting witness being the girl, it is the duty of the jury to weigh her testimony and say whether, with all her contradictions, she told the truth.

3. INDICTMENT AND INFORMATION (§ 111) — SUFFICIENCY OF ACCUSATION — STATUTORY OFFENSE—EXCEPTIONS.

Where a statute creating an offense contains exceptions negativing guilt, such exceptions must be pleaded in the indictment when they are a part of the statutory definition of the offense; but, where they do not define the crime, they need not be pleaded nor proved, but they are purely matters of affirmative defense.

4. INDICTMENT AND INFORMATION (§ 166) — ISSUES, PROOF, AND VARIANCE—MATTERS TO BE PROVED—NEGATIVES.

As a general rule, where the state is required to plead a negative, it must offer some proof thereof; the only exception being, where the subject-matter of the negative lies peculiarly within the knowledge of the other party,

the averment is taken as true unless disproved by that party.

5. ABORTION (§ 8) —EVIDENCE — BURDEN OF PROOF.

Under Rev. St. 1909, § 4458, making it a felony for any person, with intent to produce a miscarriage or abortion, to administer any drug, etc., or use any instrument to produce a miscarriage or abortion, "unless the same is necessary to preserve her life or that of an unborn child," etc., the burden is on the state to prove the nonnecessity of an abortion to save the life of the mother or the life of an unborn child.

6. ABORTION (§ 8) — EVIDENCE — BURDEN OF PROOF.

Under Rev. St. 1909, § 4458, making abortion a felony unless the same is necessary to save the life of the mother or that of the unborn child, "or, if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such purpose," if accused be not a physician, he must show affirmatively that the act was advised by a physician, etc.; such facts being peculiarly within his own knowledge, etc.

7. ABORTION (§ 11)—EVIDENCE—SUFFICIENCY.

Under Rev. St. 1909, § 4458, making abortion a felony unless necessary to save the life of the mother or child, a prima facie case of nonnecessity is made out by the state by proof of the fact that the woman was in good health, or in her usual and ordinary condition of health, immediately prior to the commission of the abortion.

8. ABORTION (§ 11)—EVIDENCE—SUFFICIENCY.

Evidence held not to show that the abortion was not necessary to save the life of the woman.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Charles B. De Groat was convicted of abortion, and he appeals. Reversed and remanded.

Appellant, convicted and fined $100 in the circuit court of the city of St. Louis upon the charge of abortion, appeals.

The facts are substantially thus: One Rose Ellis, a young married woman 24 years old, residing in St. Louis, temporarily estranged and living apart from her husband, being pregnant and having been informed, as she says, by some girl friends, that the services of defendant could be enlisted for a consideration to rid her of the unborn child, went on the 17th day of June, 1912, on a street car unaccompanied to see defendant for this purpose. She found defendant, who is a physician residing in St. Louis and for some 20 years engaged there in practicing his profession of medicine, at his office on South Ninth street in said city, and, being asked by him what she wanted, informed him that she was some 2½ months advanced in pregnancy and wanted him to perform an operation, or, as she expresses it, to "open her womb." This, in consideration of an agreed fee of $5, defendant agreed to do, and at once without further parley proceeded to do, pausing only to convince himself of the sufficiency of her heart action by auscultation, upon the prosecuting witness' telling him that her heart hurt her, and that it had always been "kind of weak."

The details of the methods employed by defendant are unimportant so far as the legal phases of this case are concerned. Suffice it to say that, by the use of certain instruments which were inserted into the womb of the witness Rose Ellis, a present small flow of blood was produced, which culminated some few days thereafter in a miscarriage. After the use upon the witness by the defendant of the instruments, she got up from the operating table, replaced her napkin, which she says she "had taken off before he went to work" on her, and rode alone to her aunt's home upon a street car. Touching her prior health, her testimony is she "was feeling bad when she went down to the office" of the defendant; but she nowhere explains her condition or nature of her ill feeling more at length, nor does it otherwise or elsewhere appear in the record, except that defendant says the witness was anæmic. Following the operation and while going on the street car to the home of her aunt with whom the witness was staying, she became ill and began to have severe hemorrhages, which illness and hemorrhages continued for some two months and until her condition became very serious if not dangerous. During this illness and these hemorrhages the miscarriage occurred. The fact of a miscarriage was sufficiently shown by another physician, Dr. Vanderbeck, who attended the prosecuting witness and treated her for hemorrhage and afterward gave testimony on the trial. Though this physician was not able to say what had caused such miscarriage, he was positive a miscarriage had happened.

The witness Rose Ellis was asked by the state on the trial, among others, these questions:

"Q. Did Dr. De Groat tell you this operation was necessary to preserve your life? A. No, sir. Q. Did he tell you it was necessary to perform this operation in order to preserve the life of an unborn child? A. No, sir. Q. Had you seen any one, before you saw Dr. De Groat, about your condition? A. No, sir."

Upon being confronted with the defendant after his arrest, she at first denied any positive knowledge of him, but afterward admitted that she knew him and that he had treated her. This action she explained to the police officer by saying defendant had winked and shaken his head at her, and she was afraid to admit that she recognized him.

Defendant offered proof of his good character, and, in contradiction of the state's contention that he had operated upon the witness Rose Ellis so as to produce an abortion on her, denied that he did anything to the woman except to examine her and to use such methods, and prescribe for her use such remedies, as would tend to stop her hemorrhages. He claims in his testimony in his own behalf in the case that he first saw her on the 13th day of June, 1912; she says her first visit to his office was on June 17th. That she came to his office, told him she was sick, and asked him to perform an operation on her, inferably, from the context, for the purpose of producing a miscarriage. Defendant examined her on this occasion, visually only, it seems (though the record is cloudy, and other inferences may be drawn), found her to be, as he says, pale and apparently anæmic, and therefore refused to operate on her. He was afraid to "operate" on her —afraid of her, he says. Thereupon and on his refusal Mrs. Ellis told him she could operate on herself; that she was in the habit of operating; that she had done so before. Defendant further says that the witness came back again to see him on the 16th of June; that he then examined her with the aid of a speculum, and found her suffering from hemorrhage of the womb with decomposition indicated. He simply washed out the affected parts and prescribed certain remedies which have the effect of stopping hemorrhage. In other words, the defendant's position is that if an operation was performed on the witness by which a miscarriage was brought about, or if by any means such miscarriage was produced, he had no part therein. By broad inference his testimony indicates, without so saying in so many words, that she had herself used means to produce an abortion upon herself. Corroborative of this theory of defendant is the admission of the woman to Dr. Upshaw that she "had taken something."

At the close of the evidence for the prosecution, the defendant interposed a demurrer thereto for insufficiency to sustain the charge in the information, which demurrer being overruled, he saved his exceptions.

Among other instructions, the court gave of his own motion one upon the question of intent, and the manner of making proof thereof in this sort of case. Since defendant is very strenuously objecting to this instruction, and since we are therefore among other matters called on to notice it, we consider it pertinent to a full understanding of the case. It is numbered 4 and so designated in the briefs, and is as follows:

"You are further instructed that the intent with which an act is committed may be proved by direct and positive testimony, or such intent may be inferred from all the facts and circumstances surrounding and attending the act, as shown by the evidence in the case, and the intent with which the defendant used an instrument or instruments upon the private parts or womb of said Rose Ellis, if you find that he did use it, or them, must be determined by you from the evidence given in this case."

The above facts will, we think, throw sufficient light upon the points it has become necessary to discuss as to enable the reader to follow the discussion subjoined.

George B. Webster and William J. Grodzki both of St. Louis, for appellan...