State v. McCoy

• Decision Date: 09 June 1897
• Docket Number: 792
• Citation: 49 P. 420,15 Utah 136
• Court: Utah Supreme Court
• Parties: STATE, RESPONDENT, v. WILLIAM McCOY, APPELLANT

49 P. 420

15 Utah 136

STATE, RESPONDENT, v. WILLIAM McCOY, APPELLANT

No. 792

Supreme Court of Utah

June 9, 1897

Appeal from the Third district court, Salt Lake county. Hon. Ogden Hiles, Judge.

Defendant was convicted of the crime of abortion and sentenced to eight years' imprisonment. From the judgment he appeals.

Affirmed.

Zane Moyle & Costigan, for appellant.

A. C Bishop, Atty. Gen., and Benner X. Smith, for the state.

MINER J. ZANE, C. J., and HART, J., District Judge, concur.

OPINION

MINER, J.:

The defendant, impleaded with others, was indicted and convicted of having, on the 19th day of February, 1896, at Salt Lake City, Utah, procured an abortion on one Evelyn Bonnett. Evelyn Bonnett died from the effects of the abortion a short time after it was committed. The deceased resided at Provo at the time, and came to Salt Lake City, where, as the prosecution claimed, she was operated upon by defendant. The mother and sister of the deceased were called as witnesses by the prosecution, and identified a photograph of the deceased, taken about two years prior to her death, as a good photograph of the deceased, and that it was as natural a representation of the deceased as it could be; that the deceased looked like the picture ten days before her death,--the time she left Provo. The photograph was offered in evidence for the purpose of identifying the deceased. The defendant objected to the introduction of the photograph as immaterial and incompetent. Dr. Collins was called, and gave a minute description of a woman seen in the defendant's office on the day in question, describing her face, features, height, age, and dress, and stated that he would recognize her again. He testified that she came down from defendant's office, and seemed in pain, and that he heard screaming in the office just before she came down-stairs following the defendant. The photograph was then shown to witness, under the objection that it was immaterial, irrelevant, and incompetent, and that the picture was taken too long a period prior to the time the witness saw her. The objection was overruled. The witness identified the photograph as resembling the woman he saw at the defendant's office. Other evidence was introduced tending to show that the deceased was at the defendant's office at the time in question, and that the defendant produced a miscarriage upon her.

We are of the opinion that the photograph was properly introduced in evidence. The witness saw a young woman in defendant's office at the time in question, under the peculiar circumstances stated. He did not know her name, but noticed her so critically that he would know her again if he should see her. He was able to give a minute description of the woman he saw, but such description, however minute, could not carry to the minds of the jury so perfect a representation of the woman as an accurate photograph would present. The photograph, when shown to be a correct likeness of the deceased, served the purpose of locating her at defendant's office, and as identifying her with more accuracy than any description from the witness could do, and thus aid the jury in coming to a more correct conclusion than they otherwise could. In the case of Dederichs v. Railroad Co., 14 Utah 137, 46 P. 656, this court held that the law was well established that photographic scenes are admissible in evidence as appropriate aids to the court and jury in applying the evidence, whether it relates to persons, things, or places, provided such photographs are shown to be correct. In the case of People v. Durrant (Cal.) 116 Cal. 179, 48 P. 75,--a case where the question at issue was very similar to the one here presented,--a photograph of the deceased, taken three years before the date of the testimony, was offered in evidence, and the court held the photograph admissible on the grounds decided by this court in the above-mentioned case.

Dr. Allen, a physician, was called by the prosecution, and gave testimony tending to show that he resided in Provo, and knew the deceased. Had met her frequently, and saw her five weeks prior to her death. At this time she appeared to be in good health. That he made a postmortem examination, and gave it as his opinion, from a careful examination of the body, that a miscarriage had been produced upon the deceased by artificial means, stating in full the reasons for his opinions. He gave it as his opinion, from an examination of the body, and his previous knowledge of the deceased, that it was not necessary to produce an abortion in order to save the life of the deceased. The last testimony was objected to as incompetent on the ground that the witness' knowledge of the deceased was not sufficient for him to give an answer intelligently. We are of the opinion that the testimony was proper. The reasons for the opinion were given with great detail. The witness was an expert, and the weight of his testimony was for the jury to consider.

Defendant's counsel, on cross-examination of F. J. Collins, a witness for the people, drew out for the first time the fact that Mrs Stansfield died from the effects of an operation, what the operation was...