State v. Helton

• Decision Date: 17 February 1914
• Citation: 255 Mo. 170,164 S.W. 457
• Parties: STATE v. HELTON.
• Court: Missouri Supreme Court

164 S.W. 457

255 Mo. 170

STATE v. HELTON.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. STATUTES (§ 107)—VALIDITY — SUBJECT— CRIMINAL LAW.

Rev. St. 1909, § 4458 (Laws 1907, p. 230), which expresses an intent to repeal Rev. St. 1899, § 1825, relative to abortion, and to enact a new section in lieu thereof, is not violative of the requirement of Const. art. 2, § 28, that a statute shall embrace but one subject, though the section as amended creates the two separate crimes of "felony of abortion" and manslaughter, by causing the death of a pregnant woman or her child; the two crimes being so closely related that it is not improper to include both in one section.

2. STATUTES (§ 118)—TITLE AND SUBJECT— ABORTION.

The title of Rev. St. 1909, § 4458 (Laws 1907, p. 230), which expresses an intent to repeal Rev. St. 1899, § 1825, relative to abortion, and to enact a new section in lieu thereof, is not violative of Const. art. 4, § 28, requiring that the subject of an act shall be clearly expressed in its title, though the new section makes it an abortion to use instruments to cause a miscarriage unnecessarily, whether the woman be pregnant or not, and creates the crime of manslaughter by causing the death of a pregnant woman or her child.

3. CRIMINAL LAW (§ 13)—"FELONY OF ABORTION" —VALIDITY OF STATUTE.

That the designation of the crime of attempting to commit a criminal abortion as the "felony of abortion" is a misnomer does not invalidate Rev. St. 1909, § 4458 (Laws 1907, p. 230), wherein such language is used; since the specific acts constituting the crime are set out and make plain the legislative intent.

4. CRIMINAL LAW (§ 1171)—APPEAL—PREJUDICIAL ERROR—ARGUMENT OF COUNSEL.

Where, in a prosecution for abortion, the evidence of guilt was meager, argument of the special prosecutor, wherein he called accused a "serpent," an objection to which was overruled by the trial court, was ground for reversal.

5. ABORTION (§ 11)—SUFFICIENCY OF EVIDENCE.

Evidence, in a prosecution for abortion committed in violation of Rev. St. 1909, § 4458, held insufficient to sustain a conviction, where it was only strong enough to arouse a suspicion of guilt.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

James W. Helton was convicted of "the felony of abortion," and appeals. Reversed, and defendant discharged.

Defendant, a practicing physician 45 years of age, was convicted of committing "the felony of abortion" upon one Ruby Seese, in Bates county, Mo., on July 9, 1912. The first count of the information charges the crime to have been perpetrated by inserting metal instruments into the womb of the prosecutrix with intent to cause an abortion, and the second count charges the administering of drugs to prosecutrix with the same felonious intent. At the close of the state's testimony, the prosecuting attorney elected to stand upon the first count charging an unlawful use of instruments, as denounced by section 4458, R. S. 1909. From a judgment finding defendant guilty and fixing his punishment at a fine of $200 and one year in the county jail, he appeals.

The evidence discloses that about 10 o'clock on the evening of July 9, 1912, while defendant and prosecutrix were leaving his office, they met the father of prosecutrix. He was in an angry mood, and assaulted defendant on the street. On the same night the father also caused the defendant to be arrested on a charge of rape upon prosecutrix. The defendant was locked up on said charge of rape for some three months, when that charge was voluntarily dismissed by the state, and the information filed charging him with the felony of abortion.

To prove a motive for defendant's alleged acts in trying to produce an abortion upon prosecutrix, the state introduced evidence tending to prove that defendant had kept company with her for several weeks, and that he had ravished her on May 15, 1912. Her version of this transaction is that on the night of May 15th the defendant walked with her to a point near a cemetery in the suburbs of Butler, Mo., and, "by placing a handkerchief saturated with some kind of sweet-smelling stuff to her nose and mouth," caused her to immediately become unconscious, and while in that condition he took her into a nearby field, and had sexual intercourse with her; that she was so completely overcome by the anæsthetic so applied to her nose and mouth by defendant while they were walking along the street that she scarcely realized the act of sexual intercourse until they were returning to her home, when defendant told her of it, and requested her not to tell her family. Prosecutrix further testified that she missed her menstrual periods due to occur on May 25 and June 25, 1912, and that, her health becoming poor, she informed defendant of her condition, and thereupon he called her to his office and inserted a metal instrument into her sexual organs.

Two witnesses for the defendant testified that they were driving along the road at the point where prosecutrix claimed she was taken into a field and ravished. Those witnesses stated that they saw defendant and prosecutrix near the cemetery, and as they returned home, and, according to their evidence, defendant did not either chloroform or take prosecutrix into a field, nor have sexual intercourse with her on that occasion. Three physicians testifying on behalf of defendant, and two on behalf of the state, completely discredit the evidence of prosecutrix to the effect that she was placed under an anæsthetic while walking along the street. All five of these physicians concurred in the opinion that there was no known anæsthetic which would cause a person to immediately become unconscious if applied while the victim was walking in the open air; that it would require from eight minutes to a half an hour to chloroform an adult person while walking or standing erect, if it could be done at all.

The defendant himself denied the alleged act of intercourse on May 15th, but admitted that he did have sexual intercourse with prosecutrix on June 5th at his office, and twice thereafter at the same place.

The prosecutrix testified that defendant inserted a metal instrument into her private parts at his office twice in the month of June, and again on the night of July 9, 1912; that on July 12, 1912, she took sick, and remained in bed a week, with a discharge from her womb. She and her mother both testified that during this sickness she had a heavy menstrual flow, and passed some pieces of clotted blood the size of a silver quarter. No physician was called during that sickness. The five physicians who testified in the case were unanimous in the opinion that, if the prosecutrix became pregnant from the alleged act of sexual intercourse on May 15th, the fœtus would have been too large to have been concealed in a blood clot the size of a silver quarter on July 12th of the same year.

Dr. Chastain, called as a witness by the state, and Dr. Foster, who testified for defendant, stated that they were called to the home of the prosecutrix to examine her and find out if an abortion had been performed upon her, and that upon such examination they did not discover any evidence of an abortion. The evidence is not clear as to when this examination was made, except that it was in the summer of 1912. Dr. Chastain testified that there was "a little abrasion of the mucous membrane of her uterine canal— very slight," and not sufficient to cause her to abort.

There was evidence of three witnesses tending to corroborate prosecutrix that she was ill about July 12, 1912, while four other witnesses testified that she was not ill at that time, but was well and out on the streets almost daily. There were also two witnesses who testified that prosecutrix admitted that her menstrual flow came at its regular time during the months of May and June, 1912. Another witness, who was present at the preliminary examination when defendant was charged with rape, stated that at said preliminary the prosecutrix swore that her monthlies were regular during May and June, 1912. Her evidence at said preliminary was not preserved in writing.

According to the evidence of prosecutrix defendant only had sexual intercourse with her twice—once on May 15, 1912, at the time she contends that she was placed under the influence of an anæsthetic, and again on July 9th, at defendant's office—that twice during June, and again on July 9th, defendant placed her on his operating chair and inserted a speculum in her vagina, and placed some wet cotton on a metal instrument and inserted it into her private parts. On this point the prosecutrix was interrogated, and gave answers, as follows: "Q. Did he tell you what he was doing it for? A. Yes, sir. Q. What did he say about it? A....