State v. Lewis

• Citation: 57 S.E.2d 513,133 W.Va. 584
• Decision Date: 13 February 1950
• Docket Number: No. 10146,10146
• Parties: STATE, v. LEWIS.
• Court: Supreme Court of West Virginia

Page 513

57 S.E.2d 513

133 W.Va. 584

STATE, v. LEWIS.

No. 10146.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1949.

Decided Dec. 22, 1949.

Rehearing Denied Feb. 13, 1950.

Syllabus by the Court.

1. An indictment for murder committed by a person who performs a criminal abortion which causes the death of a woman, which charges that such person, at a specified time and place, did feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder such woman, against the peace and dignity of the State, is sufficient.

2. Proof that the defendant committed a criminal abortion upon a woman and that she died as the result of the abortion is admissible under an indictment for murder which charges that the defendant did feloniously, wilfully, maliciously, deliberately, and unlawfully slay, kill and murder such woman but which does not state the elements of the statutory crime of abortion or that the defendant committed it or that the death of the woman was caused by the abortion.

3. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1, Syllabus, State v. Bowles, 117 W.Va. 217 .

4. 'In a criminal case proof of another offense chargeable to the defendant is admissible to show motive or intent, if such other offense is similar and near in point of time to, has some logical connection with, and tends to establish the commission of, the specific offense charged against the defendant, and indicates that such specific offense is part of a system of criminal action.' Point 3, Syllabus, State v. Hudson, 128 W.Va. 655 [37 S.E.2d 553, 163 A.L.R. 1265].

5. The only intent necessary to be established to convict the defendant of the crime of murder of the second degree for the death of a woman caused by a criminal abortion committed by the defendant, is the intent of the defendant to commit the abortion.

6. Under Code, 61-2-8, which declares that if the woman dies by reason of an abortion performed upon her by any person, as specified in and made a felony by the statute, such person shall be guilty of murder, when it appears, beyond a reasonable doubt, that the woman died by reason of such abortion performed upon her by such person, the law will supply the necessary intent and malice of the crime of murder mentioned in the statute.

7. Intemperate statements of a prosecuting attorney in the trial of a criminal case, based upon facts introduced in evidence during such trial, or induced by remarks of counsel for the defendant, which present to the jury inferences or conclusions deducible from such facts, but which are not prejudicial to any right of the defendant or do not result in manifest injustice to such defendant, will not justify reversal of a judgment of conviction entered upon a verdict of guilty when such verdict is fully supported by competent evidence in the case.

Ernest E. Winters, Jr., Huntington, Thomas West, Huntington, Jess Hammock, Huntington, for plaintiff in error.

Ira J. Partlow, Attorney General, Wm. H. Ansel, Jr., Assistant Attorney General, for defendant in error.

HAYMOND, President.

The defendant, William M. Lewis, a practicing physician and surgeon, of Huntington, Cabell County, West Virginia, was jointly indicted with Julia Darling, a nurse, at the June, 1948, term of the Common Pleas Court of that county, for the murder of one Mildred Ferguson. He was tried separately upon the indictment, to which he entered his plea of not guilty and, at that term of court, was found guilty of the crime of murder of the second degree by the verdict of a jury on July 9, 1948. The motion of the defendant to set aside the verdict and grant him a new trial having been overruled, by the judgment entered August 16, 1948, during the same term of court, he was sentenced to a term of imprisonment of from five to eighteen years in the penitentiary of this State at Moundsville. On December 11, 1948, the Circuit Court of Cabell County refused a writ of error to that judgment, and on February 21, 1949, this Court granted this writ of error upon the petition of the defendant.

Mildred Ferguson, an unmarried woman twenty-three years of age, lived with her parents, and two younger sisters, at Narrows, Virginia, where for some time prior to February 24, 1948, she was employed at a celanese plant located about four miles east of that town. In August, 1947, she became acquainted with a young unmarried man, Fred Keffer, twenty-five years of age, and as a result of their intimate association, she became pregnant. Keffer and her sisters learned of her condition early in 1948. On February 24, 1948, she worked at the plant from approximately seven o'clock in the morning until four o'clock in the afternoon, and after quitting her work she returned to her home. She then requested a man by the name of Ball to come to her home to cash her check for $300.00 and she received that amount of money from him. About seven o'clock that evening Keffer arrived in his automobile and he, Mildred Ferguson, and her younger sister, Barbara Ferguson, started on a trip to Huntington for the purpose of calling upon the defendant and having an abortion performed upon Mildred Ferguson. They arrived at Huntington, which is approximately two hundred miles from Narrows, about twelve-thirty o'clock on the morning of February 25, 1948. They ate some food at a restaurant in the city and then went to a tourist camp outside the city where they spent the night together in the same room. Keffer and Mildred Ferguson, without undressing, slept on a bed and Barbara Ferguson occupied a cot near the bed. About six o'clock that morning they ate breakfast in Huntington and then went in the automobile to Twenty-ninth Street in search of the office of the defendant which was located in a building at the corner of that street and Third Avenue in that city. Having ascertained the location of the office, they waited nearby for some time and, about eight-thirty o'clock, Mildred Ferguson and her sister entered the office where they met Julia Darling, the nurse in attendance.

According to the testimony of Keffer, her two sisters, and her father, all of whom worked with her at the plant, Mildred Ferguson appeared to be in normal health and good spirits on February 24, 1948, and Keffer and Barbara Ferguson testified that she was in that condition and that frame of mind when, without assistance, she walked into the office of the defendant on the morning of February 25, 1948.

After Mildred Ferguson had been in the office for some time and had been examined by the defendant he told Barbara Ferguson that Mildred Ferguson was in a serious condition and that it was necessary to take her to a hospital. He arranged for her admission to a hospital in Huntington, where she arrived shortly after noon. During the afternoon Dr. H. D. Hatfield, assisted by the defendant, performed an operation which lasted nearly two hours. Mildred Ferguson did not recover from the operation and shortly after ten o'clock that night she died at the hospital. Dr. Hatfield testified that her death was caused by shock and that she would have died had there been no operation. Her body was taken to Narrows, Virginia, where it was interred on February 28, 1948. Later the body was disinterred and, on March 29, 1948, an autopsy was performed by a doctor who testified at the trial.

As to the events which occurred when Mildred Ferguson entered the defendant's office, and while she remained there during the morning of February 25, 1948, and the exact time of their occurrence, the evidence is conflicting.

The evidence introduced by the State is that after Mildred Ferguson and her sister entered the office of the defendant, she went with Julia Darling, about nine o'clock that morning, into his inner office, leaving her sister in an outer room. Shortly afterwards Julia Darling came to that room and told the sister that Mildred Ferguson wanted her purse, which then contained $297.00 of the $300.00 which she had received from Ball. Julia Darling took the purse and went to the inner office. Afterwards she returned to the outer room and informed Barbara Ferguson that Mildred Ferguson wanted to see her. Barbara Ferguson then went to the inner office and Mildred Ferguson asked for a five dollar bill, which Barbara Ferguson gave her. At that time Mildred Ferguson, partly undressed, was seated on a chair. She was smiling and in good spirits. After leaving her sister, Barbara Ferguson went to the automobile nearby in which Keffer had been waiting and they rode through the business section of the city and visited some stores. Between eleven-thirty and twelve o'clock noon they returned to a point near the defendant's office and, while they were there, the defendant came to the automobile, asked Barbara Ferguson to come into the office, and there told her that Mildred Ferguson was in a serious condition, that she had lost a large quantity of blood, and that an immediate operation was necessary. He also informed her that he had arranged to have Mildred Ferguson admitted to a hospital for that purpose.

The evidence in behalf of the defendant which bears upon the foregoing events and which consisted principally of the testimony of the defendant and Julia Darling is that the defendant first saw Mildred Ferguson about elevent o'clock on the morning of February 25, 1948, when she was brought into his office by his nurse, Julia Darling, who had to assist her when she walked. At that time Mildred Ferguson was pale, bent over and...