State v. Lorenzo.

• Decision Date: 30 October 1946
• Docket Number: No. 8722.,8722.
• Citation: 48 A.2d 407
• Parties: STATE v. LORENZO.
• Court: Rhode Island Supreme Court

48 A.2d 407

STATE

v.LORENZO.

No. 8722.

Supreme Court of Rhode Island.

July 26, 1946.

Reargument Denied Oct. 30, 1946.

See 49 A.2d 316.

Exceptions from Superior Court, Providence and Bristol County; Walter Curry, Judge.

Peter Lorenzo was convicted of abortion, and he brings exceptions.

Exceptions overruled and case remitted.

John H. Nolan, Atty. Gen., and Raymond F. Henderson, Special Counsel, of Pawtucket, for the State.

McKiernan, McElroy & Going and Peter W. McKiernan, all Providence, for defendant.

FLYNN, Chief Justice.

The defendant Peter Lorenzo was tried and found guilty by a jury in the superior court upon an indictment charging him with having committed an abortion upon the body of Blanche I. Gilman. Thereafter the trial justice denied the defendant's motion for a new trial and the case is before us upon his exceptions to that ruling, to the denial of his motion for a directed verdict, and to other rulings made during the course of the trial.

The following is a brief summary of certain facts appearing in the evidence. Defendant lived in the town of Johnston and maintained an office in the city of Providence. There he kept appointments and practiced as a physiotherapist and chiropractor. Blanche I. Gilman, upon whose body the defendant was alleged to have committed an abortion, lived with her husband Ralph S. Gilman and their two small children in Brockton, Massachusetts.

In late October, 1943, she became pregnant, which condition was verified by medical examination at the Goddard Hospital in Brockton and later, on January 17, 1944, by Dr. Jonah Fieldman, of Abington, Massachusetts. Shortly thereafter, on Sunday, January 23, 1944, Mr. and Mrs. Gilman drove to Providence to locate the defendant, whose name had been suggested to them, with the object of having him perform an abortion. They met and talked with him outside his home at 98 Spring street in Johnston where he was told of Mrs. Gilman's desire to have an abortion performed. After satisfying himself that the Gilmans had learned of him from a reliable source, he made an appointment for them to come to his office on the following Friday, January 28, 1944, at 2:30 p. m. and fixed the fee that he would charge as ‘at least $100.00.’

The Gilmans drove to Providence in their automobile on January 28. They arrived in the afternoon around two o'clock, parked their automobile at Market Square and walked to defendant's office. This office was located on the second floor of a building at 350 Westminster street and comprised three small, connecting rooms, that is, a waiting room, a middle room, and a room for treatments wherein was located a wooden bed. From this last room, hereinafter called the bedroom, a door led directly to the corridor outside, so that exit was possible without passing through the other two rooms. A bolt was on the inside of that door, and the door connecting the waiting room with the middle room could be latched or locked.

The Gilmans were met by the defendant in the waiting room and were brought to the middle room. Mrs. Gilman was directed by him to go into the bedroom. The defendant then latched or locked the door between the middle room and waiting room and went into the bedroom. After telling Mrs. Gilman to remove certain of her clothing, he returned to the middle room and told her husband that the fee usually was paid in advance. Thereupon Gilman paid him $100 in $10 bills. No receipt was given. Defendant then went into the bedroom and closed the door. After five or six minutes he returned, having a doctor's mirror on his head, and reported to Gilman, who had remained in the middle room, that his wife was responding readily to treatment and that, if they could wait about three-quarters of an hour, it would probably not be necessary for her to return the next day. The defendant then returned to the bedroom and Gilman heard his wife moaning and heard her cry out, ‘Oh, Doctor, oh Doctor’ several times.

In a half or three-quarters of an hour the defendant came out of the bedroom and left the door open. Gilman saw his wife on the bed and she appeared to be in bad condition. She had been in good health before she submitted to the defendant's treatment. He then gave Gilman a box of white tablets and told him to give them according to the instructions, written by the defendant on the box, if Mrs. Gilman developed a temperature. Gilman was also instructed to telephone to him the next day as to Mrs. Gilman's condition and at that time was given defendant's business card on which was printed: ‘Office: Gaspee 9737 Res. Centredale 0412-W Dr. P. A. Lorenzo Electric Treatments Office Hours 10 to 4 P.M. or by Appointment 350 Westminster St. Providence, R. I.’

When defendant learned that the Gilman automobile was parked at lest fifteen minutes' walking distance from the office, he telephoned several times for a cab and finally obtained one for the Gilmans. Meanwhile another person or persons had come to the waiting room and spoke with the defendant, who then returned to the bedroom and let the Gilmans out through the door leading directly into the corridor without their going through the waiting room. The Gilmans, at about four o'clock, too the cab to their automobile and drove back to Brockton. On the way home Mrs. Gilman showed evidence of her illness. That evening Gilman gave her the tablets as instructed by the defendant and otherwise assisted her personally during the night.

On the following day he telephoned to the defendant as instructed, calling the number that was on the card which the defendant had given to him. The telephone company's records showed that such a call had been completed. In that telephone conversation the defendant, after verifying Gilman's identity and hearing the report of Mrs. Gilman's condition, advised him to call a town doctor and ‘Just tell him that she had a miscarriage.’ That evening, Saturday, January 29, Gilman called Dr. Fieldman at Abington, who came and examined Mrs. Gilman and left a prescription for her. When she showed no progress the next day, Dr. Fieldman called an ambulance and had her taken to the Brockton City Hospital, where she was given a blood transfusion and other treatments. She died at eleven o'clock on Monday night in the hospital. An autopsy was performed by Dr. Pierce H. Levitt, medical examiner for Plymouth county, Massachusetts. He testified as to the results of the autopsy and gave his opinion that Blanche I. Gilman ‘came to her death as a result of an infection of the abdominal cavity caused by damage done to the intestine by an instrument that had been passed through the wall of the uterus incident to the procurement of an abortion.’

An investigation by Massachusetts authorities followed Mrs. Gilman's death. In June, 1944, Gilman and investigators from the Brockton police department came to police headquarters in Providence to discuss the case. The Providence police inspectors, who accompanied them to the defendant's office, then and there disclosed their identity fully to the defendant and asked him certain questions concerning his alleged meetings with the Gilmans. His answers to all these questions were general denials. At this time, in defendant's presence and without objection by him, the local police inspectors searched his office and showed him all articles which they found, and questioned him concerning them. These included tablets and cardboard boxes for tablets that were the same as those which Gilman testified he had received from the defendant, and also certain instructments, especially state's exhibit 4. This was a metal instrument, resembling a buttonhook at one and having U-shaped prongs or teeth at the other end.

The defendant discussed these articles freely with the officers and explained where they had been obtained by him and what they were used for, as far as he knew. None of the actions by the police and none of defendant's conversations in the office resulted in any way from threats, or promises of reward, or any coercion by the officers. Following the search and seizure he went voluntarily with the officers to police head-quarters where further questioning took place. A warrant for his arrest was later issued and he was subsequently indicted, tried, and found guilty.

The defendant has expressly failed to brief or argue forty-eight of the exceptions appearing in his bill of exceptions. These are deemed to be waived and are overruled. The remaining twenty-eight exceptions are argued under four categories which relate to: (1) Rulings admitting certain evidence that was taken by the police when they searched defendant's office, and certain conversations with defendant that took place during that search; (2) rulings excluding certain questions asked by the defendant of the witnesses Gilman and Dr. Fieldman; (3) rulings denying defendant's motions for a directed verdict; and (4) the decision denying the defendant's motion for a new trial.

The first category of seventeen exceptions relates to the introduction in evidence of certain articles which the defendant alleges were taken by the police during a search of his office without a warrant in violation of article I, sections 6 and 13, of the Rhode Island constitution. These sections read: ‘Sec. 6. The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affiramtion, and describing as nearly as may be, the place to be searched, and the persons or things to be seized.’ ‘Sec. 13. No man in a court of common law shall be compelled to give evidence criminating himself.’ Like provisions are found in the fourth and fifth articles of amendment to the constitution of the United States.

The defendant contends that this property was taken during an illegal search of his office and that such property and the conversations...