State v. Moeller

• Citation: 126 N.W. 568,20 N.D. 114
• Decision Date: 06 May 1910
• Court: United States State Supreme Court of North Dakota

126 N.W. 568

20 N.D. 114

STATE OF NORTH DAKOTA v. THOR MOELLER

Supreme Court of North Dakota

May 6, 1910

Appeal from District Court, Ward county; Goss, J.

Thor Moeller was convicted of murder, and appeals from the judgment and an order denying a new trial.

Reversed and new trial granted.

Order reversed, and a new trial granted.

L. J Palda, C. D. Aaker, and Engerud, Holt, & Frame, for appellant.

Statements acts in themselves or accompanying other acts, and part of the res gestae, brought home to one conspirator, are evidence against the other if it appears that they were used in furtherance of a common design. 1 Greenl. Ev. §§ 110, 111; 3 Greenl. Ev. § 94; Wharton, Crim. Law, 4th ed. §§ 704, 705; 2 Rice, Ev. chap. 30, p. 807 & § 336; 3 Enc. Ev. p. 429, and note 74; 12 Cyc. Law & Proc. p. 438; People v. Davis, 56 N.Y. 95; Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320, 12 N.E. 865 17 N.E. 898, 6 Am. Crim. Rep. 570; Samples v. People, 121 Ill. 547, 13 N.E. 536; State v. McGee, 81 Iowa 17, 46 N.W. 764; State v. Walker, 124 Iowa 414, 100 N.W. 354; Redding v. Wright, 49 Minn. 322, 51 N.W. 1056; Nicolay v. Mallery, 62 Minn. 119, 64 N.W. 108; State v. DeWolfe, 29 Mont. 415, 74 P. 1084; People v. McGarry, 136 Mich. 316, 99 N.W. 147; State v. Ryan, 47 Or. 338, 1 L. R. A. (N.S.) 862, 82 P. 703; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401.

Witness may be asked as to knowledge gained from text-books; to test such knowledge and to lay the foundation for impeachment, books themselves may be introduced. Clark v. Com. 111 Ky. 443, 63 S.W. 740; Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N.E. 156; Pinney v. Cahill, 48 Mich. 584, 12 N.W. 862; Hutchinson v. State, 19 Neb. 262, 27 N.W. 113; Connecticut Mut. L. Ins. Co. v. Ellis, 89 Ill. 516; Ripon v. Bittel, 30 Wis. 614; Fisher v. Southern P. R. Co. 89 Cal. 399, 26 P. 894; State v. Wood, 53 N.H. 484; Clukey v. Seattle Electric Co. 27 Wash. 70, 67 P. 379; New Jersey Zinc & I. Co. v. Lehigh Zinc & I. Co. 59 N.J.L. 189, 35 A. 915.

Andrew Miller, Attorney General, Dudley L. Nash, State's Attorney, and George L. Ryerson, Assistant State's Attorney (E. R. Sinkler, of counsel), for the State.

Where there is no motion to strike out admissions and declarations, objection to their competency is waived. People v. Wong Chuey, 117 Cal. 624, 49 P. 833; People v. Colvin, 118 Cal. 349, 50 P. 539; People v. Machado (Cal.) 63 P. 66; People v. Lawrence, 143 Cal. 148, 68 L.R.A. 193, 76 P. 893; State v. Smith, 124 Iowa 334, 100 N.W. 40; Blum v. State, 94 Md. 375, 56 L.R.A. 322, 51 A. 26; State v. Rogers, 31 Mont. 1, 77 P. 293; State v. Coleman, 17 S.D. 594, 98 N.W. 175; State v. Rohn, 140 Iowa 640, 119 N.W. 88; People v. Smith, 151 Cal. 619, 91 P. 511; Duncan v. State, 171 Ind. 444, 86 N.E. 641; People v. Pope, 108 Mich. 361, 66 N.W. 213.

The mode of raising objection to improper answer is by motion to strike out, or a request for instruction that the answer be disregarded. 8 Enc. Pl. & Pr. p. 246; Reiley v. Haynes, 38 Kan. 259, 5 Am. St. Rep. 737, 16 P. 440; Holmes v. Roper, 141 N.Y. 64, 36 N.E. 180; Cowan v. Third Ave. R. Co. 31 N.Y. S. R. 145, 9 N.Y.S. 610; People v. Wilkinson, 38 N.Y. S. R. 994, 14 N.Y.S. 827; Baumier v. Antiau, 79 Mich. 509, 44 N.W. 939; People v. Coffman, 59 Mich. 1, 26 N.W. 207; Tebo v. Augusta, 90 Wis. 405, 63 N.W. 1045; Urbanek v. Chicago, M. & St. P. R. Co. 47 Wis. 59, 1 N.W. 464; Bigelow v. Sickles, 80 Wis. 98, 27 Am. St. Rep. 25, 49 N.W. 106; 8 Current Law, 248; State v. Botha, 27 Utah 289, 75 P. 731; State v. Smith, supra.

A physician may testify as to a female's pregnancy, and give reasons for his belief, after examining the body. State v. Smith, 32 Me. 369, 54 Am. Dec. 578; Ayres v. Delaware, L. & W. R. Co. 158 N.Y. 254, 53 N.E. 22.

Defendant may show necessity for operation. Hatchard v. State, 79 Wis. 357, 48 N.W. 380; State v. Lee, 69 Conn. 186, 37 A. 75; State v. Schuerman, 70 Mo.App. 518.

OPINION

SPALDING, J.

The defendant was tried on an information charging him with having, at the city of Minot in Ward county, North Dakota, on or about the 4th day of October, 1908, caused the death of one Gina Lien by, while not having any design to effect her death, inflicting upon her a mortal wound while attempting to induce and procure a miscarriage, the same not being necessary to preserve the life of the female, and of which she died on the 7th day of October, 1908, at said city of Minot. He was convicted and sentenced to serve ten years in the penitentiary. From the judgment of conviction and order denying a new trial, an appeal comes to this court.

The record is very voluminous, and is composed largely of testimony of a number of physicians, including those who performed an autopsy, regarding the cause of the death as indicated by the condition of the body and organs. These witnesses exhibit a high degree of expert knowledge of the subject, and their testimony is far less conflicting than is usual when experts testify on behalf of both parties to an action of this importance. The young lady was about twenty-nine years of age. Her home was in the northeastern part of the state. She was about four months advanced in pregnancy. Dr. Engstad, of Grand Forks, testified that she called on him at his office, he thought, on the 1st day of October, 1908, and requested him to make an examination of her; that she said she thought she had heart trouble, but that on examination he found her heart perfectly normal and her lungs sound; that she then told him she had abdominal pains. When he examined for appendicitis he discovered a large, aggravated uterus. Whereupon she acknowledged to him that she had been indiscreet, and requested him to perform an operation upon her, which he declined to do. He also testified that he made no examination after he discovered signs of pregnancy. His examination was only external. She left Grand Forks and arrived in Minot about 2 o'clock A. M. Sunday the 4th day of October, 1908, and took a room at the Leland Hotel, where she had a miscarriage, and died about 6 o'clock Tuesday morning, October 6, 1908, from septicaemia caused by injury to the uterus. The defendant visited her in her room in the hotel at different times between Sunday and early Tuesday morning. The claim of the state is that the injury to and the diseased condition of the uterus was caused by the defendant while engaged in producing a criminal abortion. The defendant's contention was that the diseased condition had been caused by an injury inflicted before he was called; that the fetus had died, and septicaemia had set in as a result of such previously inflicted injury, and that the treatment which he applied was proper and necessary under the conditions found by him. Barring the statements of the defendant to the coroner's jury, which were in accordance with his contention, the determination of the issue depended, with one very important exception, upon circumstantial evidence and the opinions of medical experts. The exception referred to was the testimony of one Paulsrud, who was permitted, over defendant's objections, to testify to acts and statements of one Dale, which were by the trial court held to be admissible against the defendant upon the theory that Dale and the defendant were co-conspirators in the procuring of the alleged abortion.

The result of this appeal depends largely upon the correctness of the ruling of the trial court admitting this evidence and his charge on the same subject to the jury. It will simplify matters to first consider this phase of the court's charge. The charge of the court on this subject was as follows: "In this case there has been received in evidence testimony relative to certain alleged statements of one L. W. Dale. I charge you that before you should consider any evidence relative to such statements, or such statements, you should be satisfied beyond a reasonable doubt from the testimony in the case other than such statements themselves that a conspiracy is proven to your satisfaction beyond a reasonable doubt to have existed between the defendant, Moeller, and L. W. Dale, to procure the unlawful miscarriage of a pregnant woman, Gina Lien, and that after so finding such conspiracy for such purpose to have existed, you further find to your satisfaction beyond a reasonable doubt that such statements admitted in evidence were made while such conspiracy or plan to do such acts was in contemplation of the parties, or was being carried into effect, and after the inception of such conspiracy and before the final completion thereof, I charge you, however, that if such conspiracy between Dale and the defendant, Moeller, existed, and you so find, pursuant thereto in execution of the same the defendant unlawfully performed the acts to produce the miscarriage of Gina Lien, as charged in the information, then the jury may consider as testimony any statements made or acts done by either of such conspirators, provided such statements or acts were made by either, while either contemplated the formation of such conspiracy, afterwards carried into execution, or attempted to be carried into execution, by such conspirators, or were so made or done while either or both of them were carrying, or attempting to carry, into execution the plan to procure such unlawful miscarriage, as the result of such conspiracy, if such conspiracy existed."

In explanation of this charge, brief reference to the testimony to which it refers is necessary. It is shown that Dale had a slight acquaintance with the witness Paulsrud; that they met at the Leland Hotel in Minot, where both were stopping, on Saturday, the 3d of October, 1908, and conversed together on that day and on Sunday, the 4th and Monday the 5th, and that in their conversations Dale...