State v. Harmon

• Decision Date: 22 December 1925
• Docket Number: No. 26055.,26055.
• Citation: 278 S.W. 733
• Parties: STATE v. HARMON.
• Court: Missouri Supreme Court

278 S.W. 733

STATE v. HARMON.

No. 26055.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

W. R. Harmon was convicted of producing a miscarriage and abortion, and he appeals. Affirmed.

Robert W. Otto, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On December 16, 1921, the grand jury of Greene county, Mo., returned into the circuit court of said county an indictment, which, without caption, reads as follows:

"The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of Greene county, upon their oath present and charge that W. R. Harmon, late of the county and state aforesaid, on the 1st day of September, 1921, at the county of Greene, and state of Missouri, being then and there a duly licensed physician, in and upon one Alma Cummins, a pregnant woman, then and there willfully, feloniously, and unlawfully, did make an assault, and did then and there willfully, feloniously, and unlawfully use and employ in and upon the body and womb of her, the said Alma Cummins, a certain instrument and instruments, the nature and description of which are to the grand jurors unknown, and did then and there willfully, feloniously, and unlawfully thrust and force said instrument and instruments into the private parts and womb of her, the said Alma Cummins, with the intent then and there to promote and produce a miscarriage and abortion upon and to the person of her, the said Alma Cummins; the same not being then and there necessary to preserve the life of the said pregnant woman, to wit, the said Alma Cummins, and the same not being necessary to preserve the life of an unborn child, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

                    "C. B. Miller, Foreman, Grand Jury
                    "O. J. Page, Prosecuting Attorney."
                

On April 3, 1922, defendant was granted a change of venue, and the cause sent to Christian county, where it was tried. On May 23, 1922, the cause was continued, by agreement of parties, and, on September 11, 1922, defendant was arraigned, and entered a plea of not guilty. The case was tried before a jury, and, on September 11, 1922, the following verdict was returned:

"We, the jury, find the defendant, W. R. Harmon, guilty as charged in the indictment, and assess his punishment at $1,000 and one year in the county jail.

                         "R. T. Turrentine, Foreman."
                

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and thereafter allocution was granted. Judgment was rendered and sentence passed in conformity to the verdict aforesaid, and an appeal was granted defendant to this court.

A certified copy of the record was filed in this court in September, 1924, and thereafter a certified copy of the bill of exceptions was filed herein. Upon an examination of the bill of exceptions, we find that the statement of facts made by counsel for the state is substantially correct, and hereby adopt the same as follows:

"The evidence for the state was substantially as follows:

"One Alma Cummins, 16 years of age, a resident of Walnut Grove, Greene county, Mo., had, about 2 months prior to September 1, 1921, become pregnant through intercourse with one Ben Coble, 19 years of age, who lived in the same community. She informed him of her condition, and about the last of August, 1921, he went to Springfield, Mo., where, after being refused consideration by one physician, he called upon the defendant, Dr. W. A. Harmon. He knew Dr. Harmon by reputation, and located his office, in the rear of the Convention Hall drug store, through reference to a telephone directory. He and Dr. Harmon discussed the case and agreed upon a fee of $50 and upon the following Thursday, September 1st, as the day he should bring the girl to town for the operation.

"About 1:30 p. m., on the day agreed upon, the girl, in company with Coble, went to Springfield in a rented automobile driven by one Dave McKinney. On the way, Coble gave her $50 in currency, and, when they reached town, Coble pointed out Dr. Harmon's office, and the girl entered alone, passing through the drug store to his waiting room. She told Harmon she was `the girl from Walnut Grove.' He examined her, and, after discussing two types of operations, insisted that she undergo one to cause an immediate abortion. At his direction she left the office for about 20 minutes, so that he might have time to sterilize certain instruments. Upon her return, he placed her in an operating chair and inserted instruments into her womb. She then paid him the money given her by Coble and returned to her home, reaching there about 6 p. m. She was in good health before and at the time of the operation, but the following evening experienced violent pains, and called Dr. McClure, the family physician. He found her in high fever and suffering from a vaginal hemorrhage. He had her taken to a hospital in Springfield, where he and one Dr. Wallace Smith, finding that she was undergoing a miscarriage, relieved her and administered treatment. She remained in the hospital for some two weeks.

"Cross-examination of the physicians developed the fact that there was nothing to indicate the cause of the trouble, and that it might have...