State v. McCurtain

• Decision Date: 12 April 1918
• Docket Number: 3157
• Citation: 52 Utah 63,172 P. 481
• Court: Utah Supreme Court
• Parties: STATE v. McCURTAIN et al

172 P. 481

52 Utah 63

STATE v. McCURTAIN et al

No. 3157

Supreme Court of Utah

April 12, 1918

Appeal from District Court of Salt Lake County, Third District; Hon J. Louis Brown, Judge.

Dr. A McCurtain and Mrs. Dora Arden were convicted of abortion. They appeal.

REVERSED and case remanded, with directions for new trial.

M. M Warner and R. R. Wedekind for appellants.

Dan B. Shields, Atty. Gen., and Jas. H. Wolfe and O. C. Dalby, Asst. Attys. Gen., for the State.

FRICK, C. J. CORFMAN, THURMAN, and GIDEON, JJ., concur. McCARTY, J., concurs in the result.

OPINION

FRICK, C. J.

The defendants were jointly charged with having produced an abortion upon a young unmarried woman, hereinafter called the prosecutrix. They were jointly tried and convicted, and appeal.

The statute under which the conviction was had (Comp. Laws 1907, section 4226) is as follows:

"Every person who provides, supplies, or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two or more than ten years."

The only matter contested at the trial was that the operation upon the prosecutrix was necessary to save her life. The pregnancy of the prosecutrix was therefore not denied; nor was the operation to expel the fetus from her womb denied, but it was contended that the operation was necessary to save her life, and therefore that the act was not criminal. Practically the only issue, therefore, was whether the acts with which the defendants were charged were criminal or otherwise. Much evidence, both for and against the defendants, upon that proposition was adduced. The jury, however, found the facts against the contention of the defendants.

The first assignment of error which is urged with much vigor by defendants' counsel, is that the evidence is insufficient to justify the verdict, and that the district court erred in refusing to so charge the jury at the request of the defendants; and, further, that the court erred in refusing to grant a new trial upon that ground. We remark that in view that the judgment must be reversed upon other grounds, and that the case must be remanded for a new trial, we shall refrain from discussing the evidence except where necessary to illustrate a point of law. After a careful examination of the evidence we have no hesitancy to state that it was sufficient on the part of the state, if believed by the jury, to carry the case to the jury, and therefore is also sufficient to sustain the verdict of guilty. The district court therefore did not err in refusing to direct a verdict for the defendants as requested by them; nor did it err in refusing to grant a new trial upon that ground.

It is next insisted that the court erred in admitting the evidence of another young woman who testified that at or about the time the operation was performed on the prosecutrix a similar operation was also performed upon her by the defendants, and that she, by reason of such operation, gave premature birth to a child and that the operation was performed while she was in perfect health and for the sole purpose of relieving her of the child with which she was then pregnant. As pointed out before, the only defense in this case is that the operation which was performed on the prosecutrix was necessary to save her life. This contention the state vigorously contested at the trial, and it there insisted and now insists that the operation was performed for the sole purpose of procuring a criminal abortion upon the prosecutrix. The question of intent was therefore the most prominent feature of the case. It has frequently been held in prosecutions of this character that for the purpose of proving that the operation was in fact criminal, and as showing the intent of the accused, the state may show that other similar operations were performed upon other pregnant women. Among the numerous cases in which the courts have so held we refer to the following: People v. Seaman, 107 Mich. 348, 65 N.W. 203, 61 Am. St. Rep. 334; State v. Brown, 26 Del. 499, 85 A. 797; People v. Hodge, 141 Mich. 312, 104 N.W. 599, 113 Am. St. Rep. 525; People v. Schultz-Knighten, 277 Ill. 238, 115 N.E. 140; 1 C. J. section 96, p. 329.

In People v. Seaman, supra (quoting from page 334 of 61 Am. St. Rep.), the Supreme Court of Michigan in passing upon this question in a prosecution for criminal abortion said:

"Upon principle and authority, it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain."

In People v. Schultz-Knighten, supra, the Supreme Court of Illinois in passing upon this identical question said:

"Though a single abortion may have been committed for a sufficient reason and with no criminal intention, repeated acts of that character may create a reasonable presumption that they were not done to preserve life or ignorantly, but with criminal intent and knowledge, and the more numerous the acts the stronger, ordinarily, will be the presumption."

In 1 C. J. section 96, p. 329, the law is stated thus:

"Acts of the defendant tending to show his knowledge of the woman's pregnancy and his intention to commit an abortion upon her may be proved whether they were prior or subsequent to the particular act charged in the indictment; hence evidence of other operations performed by defendant before or after the operation charged is admissible for the purpose of showing the intent with which the act charged was done."

No error was committed by the court in admitting the evidence of the young woman.

It is further contended that the prosecutrix is an accomplice and that the court should have so charged the jury. The contention is not tenable. It has often been held that the person on whom the criminal operation is performed although at her request or with her consent, is, nevertheless, not an accomplice. Such is the holding in the following cases: People v. Vedder, 98 N.Y. 630; Dunn v. People, 29 N.Y. 523, 86 Am. Dec. 319; Watson v. State, 9 Tex. Ct. App. 237; Commonwealth v. Wood, 11 Gray (Mass.) 85; Commonwealth v. Follansbee, 155 Mass. 274, 29 N.E. 471; 1 R. C. L. section 4, p. 71. While, no doubt, the female who requests or consents to a criminal operation with a view of producing an abortion is morally in fault, yet she is not guilty of the offense, and cannot be prosecuted under the statute. She therefore is not an accomplice.

It is however, further contended that one James Rostege, who was with the prosecutrix when the alleged criminal acts producing the abortion were committed, and who, it is contended by the defendants and admitted by the state, was the father of the child with which the prosecutrix was pregnant, and who apparently was interested in having the abortion performed, and who testified respecting the operation and the acts of the defendants, was an accomplice and that the court erred in not charging the jury to that effect as requested by them. It is conceded that Rostege was with the prosecutrix when she went to Dr. McCurtain to consult him respecting the operation; that he was with her when the first operation was performed by the doctor, and was also with her when the final operation was performed by both Dr. McCurtain and the defendant Mrs. Dora Arden at her home, where the doctor directed the prosecutrix to go after the preliminary operation upon her had been performed. While in view of all the evidence it might not have been proper for the district court to declare Rostege an accomplice as a matter of law, yet it is quite clear that the court should have instructed the jury what under our statute constitutes an accomplice, and should have told them that if they found that Rostege was an accomplice within the purview of the statute they should not convict the defendants unless Rostege's testimony was corroborated as required by our statute. Moreover, while upon the authority of People v. Watson, 21 Cal.App. 692, 132 P. 836; People v. Wah Hing, 15 Cal.App. 195, 114 P. 416, and People v. Balkwell, 143 Cal. 259, 76 P. 1017, there was ample corroborating evidence in the case at bar to support the testimony of Rostege, yet neither we nor any one else can say what weight or effect the jury gave to his testimony. His testimony was direct, and, if the jury believed it, was quite convincing. They may thus have convicted the defendants upon his testimony alone. The defendants were therefore entitled to an instruction defining an accomplice and the weight and effect that should be given to the testimony of Rostege if they found he was an accomplice. The defendants offered such an instruction, but the court refused to give it and omitted to charge the jury at all upon that subject. This constituted error which, in...