State v. Hacker, 44938

• Decision Date: 11 June 1956
• Docket Number: No. 44938,No. 1,44938,1
• Citation: 291 S.W.2d 155
• Parties: STATE of Missouri, Respondent, v. Ida Lillian HACKER, Appellant
• Court: Missouri Supreme Court

Page 155

291 S.W.2d 155

STATE of Missouri, Respondent, v. Ida Lillian HACKER, Appellant.

No. 44938.

Supreme Court of Missouri, Division No. 1.

June 11, 1956.

Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for plaintiff-respondent.

COIL, Commissioner.

Ida Lillian Hacker, defendant below, was convicted of abortion. The jury found also that she had been priorly convicted of a felony and fixed her punishment at five years in the state penitentiary. On her appeal from the ensuing judgment she contends that the trial court erred in giving and refusing instructions, in refusing to grant her motion for a continuance, in the admission of evidence, in improperly restricting her right of cross-examination, and in denying her requests for mistrial because of allegedly improper and prejudicial argument by the assistant circuit attorney.

The jury reasonably could have found that one Mary Bullock, a divorcee, became pregnant and, without any necessity to preserve her life or that of an unborn child, went to the defendant, a midwife, on February 19, February 22, and February 24, 1954, at which times defendant, by the use of instruments and other devices, feloniously and intentionally caused Mary Bullock to abort; that on January 10, 1947, defendant had been convicted of abortion, was sentenced to pay a fine, and was duly discharged upon compliance with said sentence. We shall refer to the evidence in more detail when necessary in connection with defendant's specific contentions.

Defendant says that the trial court erred in giving Instruction 2 on behalf of the state. That instruction explained that defendant was charged with the offense of abortion and that it was further charged that she had formerly been convicted of a felony; that her guilt or innocence was to be determined from the evidence adduced upon the abortion charged to have been committed between February 19 and February 26, 1954, and that the former conviction, if any, could be considered only as bearing on the question of punishment. The instruction then proceeded in its second paragraph as follows: 'If under Instruction No. 1, you find defendant guilty of Abortion, alleged to have been committed between February 19, 1954 and February 26, 1954, and further find and believe from the evidence, beyond a reasonable doubt, that before February 19, 1954 the defendant had been convicted, by trial, of a felony, and in accordance with said conviction was duly sentenced by the Court to pay a fine and costs for commission of such felony, and duly paid said fine and costs, and was duly discharged therefrom after and upon lawful compliance with said sentence imposed, then you shall assess the punishment of the defendant at imprisonment in the State Penitentiary for the term of five years.' Defendant contends that the instruction erroneously 'permitted the jury to assess punishment under the Habitual Criminal Act [Section 556.280 et seq. RSMo 1949, V.A.M.S.] without requiring a finding of a specific prior conviction, a specific sentence and the compliance therewith.'

It is true, as defendant contends, that the instruction refers to a prior conviction 'of a felony' and does not hypothesize specifically, as the instruction should have done, the particular offense of which the defendant was charged to have been convicted previously. The indictment did properly charge a prior conviction of the offense of abortion and did properly charge that she had been sentenced to pay a fine and had been discharged upon compliance with that sentence. It is also true, as defendant contends, that the Habitual Criminal Act is highly penal and has been and must be strictly construed, and that both the conviction and discharge by pardon or compliance with the sentence must be pleaded and proved. State v. Harrison, 359 Mo. 793, 794, 223 S.W.2d 476, 478; State v. Young, 345 Mo. 407, 413, 133 S.W.2d 404, 408[13-15]. It clearly appears, however, that defendant was not prejudiced by the failure of the instruction in the instant case to have hypothesized the specific offense of which defendant had been theretofore convicted. This, because the record demonstrates that the only proof adduced as to any prior conviction of defendant pertained to a conviction of the offense of abortion as charged in the indictment, and, consequently, the jury reasonably could not have and would not have believed that it could have found defendant guilty of any prior conviction other than the only one charged in the indictment and supported by proof.

Defendant contends that the court erred in refusing to give her offered Instruction B: 'You are instructed that if you find and believe from the evidence that Mary Bullock requested or consented to the performance of the alleged operation referred to in the evidence, if you find that such operation did in fact occur, then that fact may be considered by you in determining the credibility of said witness' testimony.'

It has been ruled in State v. Miller, Mo., 261 S.W.2d 103, 106[2, 3], that 'A prosecutrix' moral implication is for the jury's consideration in weighing her testimony, * * *.' That statement was made by the court in passing on the sufficiency of the evidence to sustain a conviction of abortion. In State v. Decker, 340 Mo. 972, 104 S.W.2d 307, 311[6, 7], it was stated that an instruction should be redrafted which precluded a jury from considering the request of a deceased for an abortion in "making up their verdict," and that 'While consent to, desire for, or request of a criminal abortion would not constitute a defense * * *, the jury is privileged to consider such facts in reaching their verdict.'

Defendant argues that because of the foregoing decisions she was entitled to a specific instruction directing the jury that it might consider the fact of Mary Bullock's request for, or consent to, the instant abortion in determining the credibility of her testimony. That contention is without merit under the facts of this case. There was no instruction given directing the jurors' attention to the law that a prosecutrix' consent to or request for an abortion was not a defense. See State v. Fitzgerald, Mo., 174 S.W.2d 211, 214. And the court gave the usual general instruction on the credibility of the witnesses and the weight to be given their testimony, in which it told the jury, among other things, that in determining credibility and weight it could take into account all the facts and circumstances given in evidence. Under such circumstances, defendant's offered Instruction B was properly refused because it erroneously singled out for comment the credibility of the one witness, Mary Bullock, and isolated particular facts for their special consideration applicable alone to her testimony. State v. Pollard, 174 Mo. 607, 614, 615, 74 S.W. 969, 970; State v. Perkins, Mo., 92 S.W.2d 634, 639; State v. Shelton, 223 Mo. 118, 139, 140, 122 S.W. 732, 739.

Defendant contends that the trial court erred in refusing to give Instruction C: 'The Court instructs the jury that if upon a consideration of all the evidence, you have a reasonable doubt as to whether Mary Bullock was in good health on or immediately prior to February 19, 1954, then you are instructed to find the defendant not guilty.'

The state's main instruction in pertinent part hypothesized that defendant wilfully, feloniously, and unlawfully used and employed a certain instrument with the intent to produce an abortion 'upon and to the person of the said Mary Bullock, she being then and there pregnant and in good health, if you so find, said act, if any, not being then and there necessary to preserve the life of the said Mary Bullock, if you so find, or that of an unborn child of the said Mary Bullock, * * *.'

Section 559.100 RSMo 1949, V.A.M.S., under which defendant was indicted, requires proof and finding of the nonnecessity of the abortion to preserve the life of the person aborted or the life of her unborn child. It was held in State v. DeGroat, 259 Mo. 364, 379-381, 168 S.W. 702, 707, 708, that the burden of proof is upon the state to prove such nonnecessity of the abortion and that a prima facie case of nonnecessity is made by proof that the woman involved was in good health or in her usual and ordinary state of health immediately prior to the commission of the abortion charged. Defendant contends that under the usual rule pertaining to instructions in both civil and criminal cases, she had the right to converse any essential element of the crime charged and hypothesized in the state's instruction.

The difficulty with defendant's position is that the fact that the state may make a prima facie case of a nonnecessity by proof of good health does not mean that good health of the woman aborted was an essential element of the offense or that it was necessary to have hypothesized such in the instruction. The essential element to be hypothesized was not Mary Bullock's good health; rather it was the nonnecessity of the abortion to preserve her life or the life of her unborn child. The language in state's Instruction No. 1 relating to a finding of Mary Bullock's good health was surplusage and proper only as a part of the total essential hypothesis of nonnecessity to preserve life. Defendant's Instruction C constituted a positive misstatement of the law in that it directed a verdict of not guilty if the jury had a reasonable doubt as to whether Mary Bullock was in good health immediately prior to February 19, 1954. Defendant thereby ignored and did not undertake to negative or converse the pertinent essential element of the offense, viz., the nonnecessity of the operation to preserve life, irrespective of the health of the person aborted immediately prior to the abortion. It follows that the trial court correctly refused Instruction C.

The record indicates that prior to the impaneling of the jury but perhaps after voir dire...