State v. Hart
| Decision Date | 27 December 1946 |
| Docket Number | 29855. |
| Citation | 175 P.2d 944,26 Wn.2d 776 |
| Parties | STATE v. HART. |
| Court | Washington Supreme Court |
Department 2
Rehearing Denied Feb. 3, 1947.
Frank C. Hart was convicted of abortion and manslaughter, and he appeals.
Judgment affirmed.
Appeal from Superior Court, King County; Matthew W. Hill, judge.
John G Matthews and Rummens & Griffin, all of Seattle, for appellant.
Lloyd Shorett and Max R. Nicolai, both of Seattle, for respondent.
By information filed by the prosecuting attorney for King county, defendant was charged in court I with the crime of abortion, and, in court II, with the crime of manslaughter alleged to have been committed as part of, and connected with, the transaction set forth in count I. Defendant pleaded not guilty on both charges. The action was tried Before the court and jury. At the conclusion of the state's case, defendant challenged the legal sufficiency of the evidence and moved for a directed verdict of acquittal. The motion was denied. Defendant thereupon renewed a former motion for an order declaring a mistrial, on the ground of misconduct on the part of the prosecuting attorney. That motion was likewise denied. Defendant then announced that he would stand upon the record and declined to submit any evidence in support of his plea. The cause was thereupon submitted to the jury on instructions given by the court. The jury returned a verdict of guilty on both counts. Defendant subsequently interposed a motion in arrest of judgment or, in the alternative, for a new trial. The motion was denied and judgment was entered on the verdict. Defendant appealed.
In count I of the information appellant, Frank C. Hart, was accused of the crime of abortion, alleged to have been committed as follows:
'He, the said Frank C. Hart, in the County of King, State of Washington, on or about the 5th day of March, 1945, with intent to produce the miscarriage of a woman, one Beatrice Fern Fisher, wilfully, unlawfully and feloniously did use certain instruments, which at this time are not known to the Prosecuting Attorney, said acts not being then and there necessary to preserve the life of said Beatrice Fern Fisher, or of the child with which she was then and there pregnant.' (Italics ours.)
The statute relating to the crime of abortion is Rem.Rev.Stat. § 2448, which provides:
'Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall--* * *.
'(2) Use, or cause to be used, any instrument or other means;
'Shall be guilty of abortion* * *.' (Italics ours.)
In count II of the information, appellant was charged with the crime of manslaughter, alleged to have been committed as follows: 'He, the said Frank C. Hart, as a part of the transaction alleged in Count I and connected therewith, in the county of King, State of Washington, on or about the 5th and 6th days of March, 1945, with intent to produce a miscarriage of one Beatrice Fern Fisher, wilfully, unlawfully and feloniously did use or employ certain instruments, which at this time are not known to the Prosecuting Attorney, on the person of Beatrice Fern Fisher, who at said time was quicr with child, the said acts not being then and there necessary to preserve the life of said Beatrice Fern Fisher or of the quick child with which she was then and there pregnant and as a result of an embolism caused thereby, the said Beatrice Fern Fisher then and there died on the 6th day of March, 1945.' (Italics ours.)
The statute upon which the last mentioned charge was brought is Rem.Rev.Stat. § 2397, which reads as follows: 'Every person who shall provide, supply or administer to a woman whether pregnant or not, or shall prescribe for or advise or procure a woman to take any medicine, drug or substance, or shall use or employ, or cause to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman or of any quick child of which she is pregnant is thereby produced, shall be guilty of manslaughter.' (Italics ours.)
We have supplied the italics in the foregoing questions from the information and from the corresponding sections of the statute, because of certain contentions made by the appellant, as will appear later herein.
The uncontradicted evidence produced by the state, although in part admitted over appellant's objections, was as follows:
The deceased, Beatrice Fern Fisher, was a married woman, thirty-six years of age at the time of her death on March 6, 1945. She and her husband, Lyle Fisher, operated a grocery store and gasoline station near Edmonds, in Snohomish county, about seventeen miles north of the business district of the city of Seattle. Mrs. Fisher regularly took an active part in the operations of both the grocery store and the gasoline station, besides attending to her household duties, and for several months prior to her demise had been in good health. Mr. And Mrs. Fisher had three children, aged respectively, fourteen, thirteen, and four years, all of whom were living with their parents, and the youngest of whom is a girl.
About eight years prior to her death, Mrs. Fisher had an abortion performed upon her by a woman doctor in Seattle; this same doctor had also delivered the oldest of the deceased's surviving children.
About two months prior to her death, Mrs. Fisher again became pregnant. She confirmed her suspicion of this fact by consulting a physician in Edmonds. She determined at that time not to have the expected baby and on the evening of March 4th advised her husband to that effect, stating that she intended to go to the woman doctor in Seattle for an abortion. The husband was unwilling that she should do this, but left the matter to her own decision.
On the morning of March 5th, 1945, Mrs. Fisher left home, in the family car, taking with her the four-year old daughter and one hundred dollars in money, at the same time stating to her husband that she was going to seattle and there have an abortion performed by the woman doctor referred to above. Later that morning, Mrs. Fisher called her husband by telephone and told him that she had not talked to that doctor, but that the doctor's nurse had referred her to one Doctor T., in Seattle.
It appears that on her way to Seattle, Mrs. Fisher stopped at the home of her mother-in-law, Mrs. Ethel Howard, who was a practical nurse with about twenty years' experience in that vocation. While at Mrs. Howard's home, Mrs. Fisher called the office of Dr. T. and conversed with someone in that office with reference to having an abortion performed upon her. This was the first intimation that Mrs. Howard had of Mrs. Fisher's pregnancy.
Shortly thereafter, Mrs. Fisher, accompanied by her four-year old daughter and Mrs. Howard, drove to Seattle and called at Dr. T.'s office, arriving there at about noon. Dr. T. was unavailable, however, but his nurse handed to Mrs. Fisher the doctor's professional card, which appears as an exhibit in the case, on the back of which the nurse had written the appellant's name and his office address in the Joshua Green building in Seattle.
Leaving Dr. T.'s office, the party of three when to the office of the appellant. Upon their entrance they found the waiting room filled with women. No nurse, however, was in attendance. Sometime after their arrival, appellant appeared in the waiting room and announced: 'Five of you women that came in just now leave and those that were here yesterday remain.' Mrs. Howard and the little girl thereupon left, but Mrs. Fisher remained.
About five o'clock that afternoon Mrs. Fisher, who was then on her way home in her car, stopped at the home of her mother-in-law. She appeared to be suffering from shock, was perspiring profusely, and complained of a severe pain in her head. Mrs. Howard put her to bed and, in accordance with appellant's instructions, gave her a cup of black tea and placed a hot water bottle beneath her back. Mrs. Howard then observed that Mrs. Fisher was bandaged about her genital organs.
Mrs. Fisher remained in bed for about forty-five minutes, then arose and had dinner with Mr. and Mrs. Howard. At about 8:30 p. m. she left for home, stopping on the way at the service station to pick up her husband.
The next morning, March 6th, Mrs. Fisher informed her husband that she was preparing to return to the appellant's office for the purpose of having him remove 'the blood clots.' At this time, she appeared tired and worn. Taking her little daughter, she departed for Seattle and, on the way, stopped for a while at the home of Mrs. Howard. The party of three then drove on into the city, where they first had lunch and then proceeded to appellant's office. On their way to the office Mrs. Fisher complained of severe pain in her arm and in the region of her heart; her face had taken on a color of deep red.
Upon their arrival at appellant's office they again found it filled with women, but no nurse was present. Shortly thereafter appellant appeared in the waiting room and again announced that those who had come in for the first time should leave and that those who had been in the day Before should remain. He then directed Mrs. Fisher to go into his inner office. Mrs. Howard, being alarmed over Mrs. Fisher's condition, said to the appellant: 'I am very much concerned over her, she is ill.' Appellant replied:
With the understanding that she would meet Mrs. Fisher in the lobby of the building in twenty minutes, Mrs. Howard left ap...
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