State v. Martin

• Decision Date: 23 July 1934
• Docket Number: 25153.
• Citation: 34 P.2d 914,178 Wash. 290
• Parties: STATE v. MARTIN.
• Court: Washington Supreme Court

34 P.2d 914

178 Wash. 290

STATE v. MARTIN.

No. 25153.

Supreme Court of Washington

July 23, 1934

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

E. T Martin was convicted of manslaughter and abortion, and he appeals.

Affirmed.

Geo. H. Crandell, of Seattle, for appellant.

Robert M. Burgunder, John F. Walthew, and William J. Wilkins, all of Seattle, for respondent.

MILLARD Justice.

By the first count of an information, a physician and a nurse were charged with the crime of manslaughter, in that defendants' use and employment of instruments and other means, with intent thereby to procure the miscarriage of a named woman, the same not being necessary to preserve her life, produced the death of the woman. The pertinent statute 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 * * * is thereby produced, shall be guilty of manslaughter.' Rem. Rev. Stat. § 2397.

By the second count of the information, the same defendants were charged with the crime of abortion (the same woman was the named victim in each count), in violation of the statute which provides that:

'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.' Rem. Rev. Stat. § 2448.

The trial resulted in acquittal of the nurse, and verdict of guilty as to the physician on both counts. From the judgment and sentence pronounced in accordance with the verdict, the physician prosecutes this appeal.

Citing State v. Powers, 155 Wash. 63, 283 P. 439, 440, as sustaining authority, appellant insists that the irrigating curettement, an operation performed with a surgical instrument for the purpose of emptying the uterus, was necessitated by the presence of infection; and that the state did not sustain the burden of proving that the operation performed by him was not necessary to save the patient's life.

In State v. Powers, supra, we said that, according to the medical testimony offered by the appellant, a curettement is recognized as proper where there was flowing, increased temperature and accelerated pulse, for the reason that infection would be indicated. We held that under the statute (Rem. Rev. Stat. § 2448) it was necessary for the state to prove that the curettement of the prosecuting witness in that case was not necessary to preserve her life, and said: 'If the appellant in performing the operation did something which was recognized and approved by those reasonably skilled in his profession practicing in the same community with him, and the same line of practice, then it cannot be said that the operation was not necessary to preserve the life of the patient. That circumstantial evidence is competent to prove the absence of a necessity for an operation in order to preserve a woman's life is amply supported by authority.'

The burden was imposed upon, and sustained by, the state to prove that the curettement was not necessary to preserve the life of the patient. If, in the case at bar, the evidence adduced by the state is true (the jury had a right to believe it and their verdict reflects acceptance thereof as true and the rejection of the testimony of appellant and his codefendant as untrue), that evidence is sufficient to show nonnecessity of the curettement to save the woman's life. The facts are summarized as follows:

In February, 1933, an unmarried woman, twenty-two years old and apparently in good health, discovered that she was pregnant. She so informed her lover, who obtained for her an emmenagogue in the form of pills. These failed to renew the menstrual flow. In March, 1933, her lover procured for her a drug known as duray. Part of this was taken by the woman in March and the remainder of it about April 3d or 4th. It likewise, was of no aid in bringing on the menstrual flow. During all of this time the woman was employed as a clerk in a store. Members of her family and a fellow employee, none of whom knew that she was pregnant, and her lover testified that her physical condition, appearance, and demeanor were unchanged during the period of pregnancy. Between April 7th and 10th she had a slight attack of headache and indigestion, but there is no other record of indisposition. On April 8th, on advice of a physician, she went to the nursing home of appellant's codefendant. The latter, on inquiry of the woman and her lover, gave the names of appellant and another physician who would take care of the case. On Tuesday, April 11th, the woman's lover called at the office of appellant and informed him as to the woman's condition. The appellant advised his caller to bring the woman to appellant's office the next morning, April 12th, for examination. This was done. The woman was in appellant's private office approximately thirty minutes. Only the appellant could testify concerning what there occurred and what was said; the victim's lips were sealed by death. After the woman's departure from his private office, appellant informed the woman's lover that the entire cost until Saturday night, including the nursing home charges and the appellant's fee, would be $75, and directed him to take the woman to the nursing home of appellant's codefendant, which was done that afternoon. Two days later, Friday, April 14th, the appellant performed the curettement operation and removed the fetus of a child. Appellant's codefendant testified that the nature of the operation was not disclosed to her; that: 'I understood he was going to use a hot antiseptic wash. I didn't understand he was going to remove the fetus of a child. I would not have permitted Dr. Martin to remove the...