State v. Law

• Citation: 150 Wis. 313,136 N.W. 803
• Parties: STATE v. LAW.
• Decision Date: 04 June 1912
• Court: Wisconsin Supreme Court

150 Wis. 313

136 N.W. 803

STATE

v.LAW.

Supreme Court of Wisconsin.

June 4, 1912.

Certified from Circuit Court, Dane County; E. Ray Stevens, Judge.

A. R. Law was convicted of abortion, and he filed exceptions, which were certified to the Supreme Court. Overruled and remanded.

Barnes and Siebecker, JJ., dissenting in part.

Exceptions allowed, under section 4720, Stats., to review the rulings of the circuit court for Dane county made in the above-entitled action. The information is as follows: “I, Robert N. Nelson, district attorney for said Dane county, hereby inform said court that A. R. Law did, on the 19th day of July, 1911, at the city of Madison, in said county, willfully and feloniously employ upon the body and womb of Annie O'Brien, being then and there pregnant with a child, a certain instrument, to wit, a rubber tube, commonly called a catheter, with intent thereby then and there willfully and feloniously to destroy such unborn child, the same not being necessary to preserve the life of such mother, the said Annie O'Brien, and not having been advised by two physicians to be necessary for the purpose of preserving the life of such mother, the said Annie O'Brien, by means whereof the death of the said Annie O'Brien was produced, and whereby the said A. R. Law did, on the 26th day of July, 1911, feloniously kill and slay the said Annie O'Brien, against the peace and dignity of the state of Wisconsin.” The statute defining the offense is section 4352, Stats. 1898.

Assignments of error: (1) The court erred in admitting in evidence the alleged dying declaration of Annie O'Brien taken down in typewritten form. (2) The court erred in admitting in evidence the testimony of Robert N. Nelson as to the alleged oral dying declaration of Annie O'Brien. (3) The court erred in admitting in evidence the testimony of Deborah Richter as to the alleged oral dying declarations of Annie O'Brien. (4-7) The court erred in admitting as evidence the testimony of Drs. Joseph Dean and Joseph P. Donovan, relative to privileged communications, and also relative to other things, as experts.(8-10) The court erred in permitting C. R. Bardeen, C. H. Bunting, and M. P. Ravenel to testify as experts, because there was no proper proof of their qualifications. (11, 12) The court erred in excluding the testimony of Jerre O'Brien.

The foregoing presents an abbreviated statement of the exceptions and assignments of error which are formally set forth in the record.

With reference to the first, second, and third assignments of error, counsel for accused cited State v. Carter, 107 La. 792, 32 South. 183; 4 Cyc. of Ev. 933, 939, 945, 946; State v. Jeswell, 22 R. I. 136, 46 Atl. 407;McHugh v. State, 31 Ala. 320; 1 Greenlf. on Ev. 156; People v. Loper, 159 Cal. 6, 112 Pac. 720;People v. Barric, 49 Cal. 344;People v. Thompson, 84 Cal. 605, 24 Pac. 386;Justice v. State, 99 Ala. 180, 13 South. 658;Commonwealth v. Casey, 11 Cush. (Mass.) 417, 59 Am. Dec. 150;Ledbetter v. State, 23 Tex. App. 247, 5 S. W. 227;State v. Banister, 35 S. C. 290, 14 S. E. 678;Maxwell v. State (Miss.) 40 South. 615;State v. Roberts, 12 N. C. 260;Peter v. State, 4 Smedes & M. (Miss.) 37;Deathridge v. State, 1 Sneed (Tenn.) 75;Stephen v. State, 11 Ga. 225;People v. Johnson, 41 Cal. 452;People v. Loper, 159 Cal. 6, 112 Pac. 720; Roscoe's Criminal Ev. 41. On the part of the state: Ency. of Ev. vol. 4, pp. 947, 979, 980; 2 Wigmore on Ev. § 1442; State v. Cameron, 2 Pin. 490;Miller v. State, 25 Wis. 384;State v. Martin, 30 Wis. 216, 11 Am. Rep. 567;State v. Dickinson, 41 Wis. 299;Richards v. State, 82 Wis. 173, 51 N. W. 652;Hughs v. State, 109 Wis. 397, 85 N. W. 333;Van Haltren v. State, 142 Wis. 143, 124 N. W. 1039;Novkovic v. State, 135 N. W. 465;Vass v. Commonwealth, 30 Va. 786, 24 Am. Dec. 695; Greenleaf, Ev. § 159.

In behalf of accused, there was cited in support of assignments of error 4, 5, 6, and 7 the following: Sections 1436, 4075, and 4078d, Stats. 1898, with amendments; People v. Murphy, 101 N. Y. 126, 4 N. E. 326, 54 Am. Rep. 661. In behalf of the state: Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465;Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. Rep. 340;State v. Grimmell, 116 Iowa, 596, 88 N. W. 342;Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524;People v. Harris, 136 N. Y. 423, 33 N. E. 65;People v. West, 106 Cal. 89, 39 Pac. 207;People v. Griffith, 146 Cal. 339, 80 Pac. 68;State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323;People v. Glover, 71 Mich. 303, 38 N. W. 874; Jones, Ev. (2d Ed.) § 761; Wigmore, Ev. § 2385; 10 Ency. Ev. 135; People v. Benham, 30 Misc. Rep. 466, 63 N. Y. Supp. 923.

In behalf of accused, there was cited in support of assignments of error 11 and 12 Robinson v. Talmadge, 97 Mass. 171;Litchfield v. Merritt, 102 Mass. 524; Gosselin v. King, 33 Can. Sup. Ct. 255, 277; King v. Sassaman (Tex. Civ. App.) 64 S. W. 937;Polson v. State, 137 Ind. 519, 35 N. E. 907; 2 Words and Phrases, p. 1342; Hagerman v. Wigent, 108 Mich. 192, 65 N. W. 756;Van Alstine's Estate, 26 Utah, 193, 72 Pac. 942;Stanley v. Stanley, 112 Ind. 143, 13 N. E. 261;Commonwealth v. Cleary, 152 Mass. 491, 25 N. E. 834;Flora v. Anderson (C. C.) 75 Fed. 217;Epstein v. Penn. Ry. Co., 143 Mo. App. 135, 122 S. W. 366. On the part of the state: Smith v. Merrill, 75 Wis. 461, 44 N. W. 759; Averson v. Kinnard, 6 East. 192; Miller v. Miller, 14 Mo. App. 418;Commonwealth v. Sapp, 90 Ky. 580, 14 S. W. 834, 12 Ky. Law Rep. 484, 29 Am. St. Rep. 405; 6 Ency. Ev. 867; 1 Greenleaf, Ev. § 337; Goodrum v. State, 60 Ga. 509; 6 Ency. Ev. 903; U. S. v. White, 4 Utah, 499, 11 Pac. 570;Stanford v. Murphy, 63 Ga. 410; Rerry v. Randall, 83 Ind. 143; 23 Am. & Eng. Ency. Law, 95.

Richmond, Jackman & Swansen and Rufus B. Smith, for plaintiff.

L. H. Bancroft, Atty. Gen., Russell Jackson, Deputy Atty. Gen., Robert N. Nelson, Dist. Atty., and F. L. Gilbert, Special Counsel to Dist. Atty., for the State.

TIMLIN, J. (after stating the facts as above).

The testimony offered on the part of the state tended to show that on Wednesday, July 19, 1911, the deceased, Annie O'Brien, a married woman, residing with her husband, consulted the accused, a licensed physician, in a professional capacity, informing him that she was about five weeks advanced in pregnancy and wished him to produce a miscarriage; and that defendant, by the use of an instrument for that purpose, inserted a tube in the uterus. On Thursday, the next day, she removed the tube, and following this (how soon not stated) she became sick. This happened a week before the day of her death, and she had been sick several days before her death, according to her statement to the nurse, Richter. On the evening of July 25th, the husband of deceased called Dr. Dean on the telephone, and the latter declined to go to O'Brien's house, because he (Dean) was himself sick. He gave O'Brien the names of several other physicians whom the latter might call. Later that night O'Brien called personally at Dean's house, roused the latter, and told him that his wife had been to see Dr. Law, and gave such description of her condition as led Dr. Dean to suspect that something irregular had been attempted. Dr. Dean still refused to call, and recommended O'Brien to get another doctor, but told the latter that on his way to the hospital in the morning he would call on Mrs. O'Brien. He did so, and found her in an advanced stage of peritonitis, her pulse and temperature indicating a dangerous condition, and found a bloody discharge from the vagina. Dr. Dean informed her that he would not take charge of her case, unless she made a full statement to him concerning it. He insisted upon this, he says, to enable him to treat the case properly, and also for his own protection. She made such statement, and implicated the defendant as having, with her consent, attempted an abortion. Dr. Dean concluded the only way to save her life was to take her to the hospital, and, by an operation, open the abdominal cavity and drain off the pus there apparently collected. She was taken to the hospital. Dr. Dean called in Dr. Donovan. It was found that the patient's condition was such that she failed to respond to ordinary heart stimulants; and this, together with other symptoms, convinced the doctors that an operation could not be safely performed, and also that the woman was in extremis. Knowing that she was about to die, she made a dying declaration, implicating the accused, to Deborah Richter, one of the nurses at the hospital. Dr. Dean informed the district attorney, who came to the hospital and took her dying declaration in the presence of the two doctors, Dean and Donovan, the nurse, and a lady stenographer, who afterwards wrote it out in typewriting. The woman died in the afternoon of that day; and an autopsy disclosed, according to the opinion of the physicians who conducted the same, that the cause of the death was acute peritonitis originating in the uterus and spreading from thence to the Fallopian tubes, and thence to the peritoneum generally.

The accused took the stand in his own behalf, and testified that Mrs. O'Brien called at his office for medical treatment on Wednesday, July 19th, about 10:30 o'clock in the morning, and complained of a pain in her right side, which she had felt for a year or two before. When she got into the private office for the purpose of having an examination made relative to this pain in her side, she informed the accused that she had passed her menstrual period two or three days, and wished him to ascertain whether she was pregnant. He placed her upon an operating table, found a soreness over the right ovary, and found she was not pregnant. He gave her an emmenagogue and some salacetol tablets, and she left. There was no request that he produce a miscarriage, and nothing was inserted in the uterus. He heard nothing from her until Sunday evening following, between 7 and 8 o'clock, when he received a...