State v. Moon

• Decision Date: 06 October 1914
• Docket Number: No. 29446.,29446.
• Citation: 148 N.W. 1001,167 Iowa 26
• Parties: STATE v. MOON.
• Court: Iowa Supreme Court

167 Iowa 26

148 N.W. 1001

STATE

v.MOON.

No. 29446.

Supreme Court of Iowa.

Oct. 6, 1914.

Appeal from District Court, Black Hawk County; F. C. Platt, Judge.

The defendant, having been indicted and convicted upon a charge of murder in the second degree, has taken an appeal from the judgment against her. The material facts are stated in the opinion. Reversed and remanded.J. C. Murtagh, of Waterloo, Healy, Burnquist & Thomas, of Ft. Dodge, and Feely & Feely, of Waterloo, for appellant.

George Cosson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and Wirt P. Hoxie, Co. Atty., and E. H. McCoy, Asst. Co. Atty., both of Waterloo, for the State.

WEAVER, J.

The theory of the state's case is that Rebecca Shade, a young unmarried woman, having become pregnant by one Morris, the latter applied to the defendant, a practicing physician, for the purpose of having a miscarriage produced upon the young woman, and that defendant, for a stated compensation, undertook to bring about the desired result. In pursuance of said alleged arrangement, it is claimed that a criminal operation was performed upon the young woman by the defendant, from the effects of which death ensued. A conviction having been obtained and new trial denied, the defendant appeals, seeking a reversal of the judgment because of alleged errors occurring at the trial.

There was evidence on the part of the state tending to establish its theory of the crime. To a considerable extent this evidence was furnished by the man Morris, who was a witness for the prosecution. He admitted his illicit relations with the deceased, her resulting pregnancy, and claimed that at her request he interviewed the appellant, who undertook to bring about an abortion. Pursuant to this agreement, he says Miss Shade went to defendant's office, where it is alleged an operation was performed upon her, from which place she repaired to a room to which she had been directed by defendant. It further appeared that the girl took the room mentioned on Saturday, October 28, 1912, and that she later became violently sick there, and, being removed to a hospital, died on the following Monday. The evidence also tends to show that, before consulting defendant, Miss Shade had visited other doctors, and by some of them had been given medicine, the use of which would or might tend to bring about a miscarriage. Evidence of the post mortem examination is also to the effect that the womb of the deceased was punctured or wounded, an injury which might have been produced by the use of an instrument employed to produce a miscarriage. Morris does not claim to have been present at the alleged operation, and there is no evidence to any dying statement by Miss Shade. The defendant admits that she was applied to by Morris and Miss Shade, who solicited her to bring about an abortion. This, she swears, she refused to do and did not do. It is unnecessary to incorporate here any further statement of the facts or alleged facts. It is enough, for the purposes of this appeal, to say that defendant pleaded not guilty to the indictment, and as a witness averred her innocence of the offense, thus presenting the ordinary issues of fact for the consideration of the jury, and her appeal raises the question whether the record discloses error in the course of the trial sufficient to vitiate the verdict. Of the points made in argument, we note the following:

[1][2] I. Under the law of this state, a person who, in an unlawful attempt to produce a miscarriage, inflicts injury upon a woman, from which she dies, is guilty of murder in the second degree. State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776. The statute which makes such an operation unlawful excepts from its prohibition a miscarriage produced or attempted, where such act or operation is necessary to save the life of the woman upon whom the operation is had. Code, § 4759. To justify a conviction of murder in such cases, the indictment must charge, and the evidence must show, beyond a reasonable doubt, not only the alleged act or attempt to produce the miscarriage, but also that such act or attempt was not necessary to save the life of the woman. State v. Aiken, 109 Iowa, 645, 80 N. W. 1073. The indictment in this case makes the necessary allegation both of the wrongful use of an instrument for the purpose of producing a miscarriage upon the person of Miss Shade, and that such miscarriage was not necessary to save her life. Bearing in mind these facts and the rules of law to which we have adverted, the point of the first assignment of error argued, to which we are about to refer, will be readily apprehended.

It appears from the record that Dr. Clark, a woman physician, was called as a witness for the state, and having testified that she examined Miss Shade shortly before the alleged crime was committed, and found her pregnant, and that she discovered nothing to indicate the necessity of producing a miscarriage to save the young woman's life, counsel for the defense sought, upon cross–examination, to draw from her some statement or admission that her examination of the deceased had not been sufficiently thorough to enable her to speak very positively concerning the necessity of a miscarriage. After a few questions of this nature had been asked and answered, a conversation or discussion occurred between the court and counsel for defendant, in the presence of the jury, as follows:

“By the Court: I understand, from your statement to the jury, that there is no question involved in this case such as you are examining this witness on. Mr. Murtagh: This goes to the credibility of the witness, your honor. She testified generally as to the conditions. By the Court: You are examining her upon the question of whether it was necessary to perform the operation to save the life of this girl. You might with equal propriety examine her on the theory that it was necessary to amputate one of her limbs. Mr. Murtagh: Perhaps that is true, but would it not be admissible, on the credibility, to show the familiarity of the witness with the part affected and the general condition? By the Court: Well, it seems to me I would confine myself to the issue in the case, such as you have made in your opening statement. You have a right to examine this witness or any other witness as to their credibility.”

Later another witness, Dr. O'Keefe, testified on the part of the state, and, having testified that he performed the autopsy upon the body of the deceased, the prosecuting attorney proceeded to interrogate him as an expert upon the subject whether the examination of the body revealed any conditions indicating necessity for a miscarriage in order to save the woman's life. The witness having answered in the negative, the court interrupted the examination, and the following colloquy between the presiding judge and the prosecutor ensued:

“By the Court: I may be misinformed, but I do not understand that is in this case at all. Mr. McCoy: That is one of the things that the state have to prove. By the Court: Yes, but then that has been sufficiently done. There is no claim made that this operation was performed for that purpose, as I understand it. Mr. McCoy: I don't know whether there is or not. By the Court: The opening statement of counsel was that there was no such defense. Mr. McCoy:. I believe that was the inference from part of the statement of counsel. By the Court: If there is such defense, I would not limit the inquiry that was just made.”

[3][4][5][6] Error is assigned upon each of these rulings. The opening statement to the jury by defendant's counsel is set out in full in the record, and a reading of it fails to show anything in the nature of an admission that the alleged miscarriage, if one was produced, was not necessary to save the life of the deceased. On the contrary, the jury was reminded by counsel that the plea of not guilty operated to put in issue and cast upon the state the burden of proving every material allegation of the indictment. The statement did seem intended to impress the jury with the theory that, when Miss Shade called upon the defendant and asked to have an abortion performed, the young woman had already been making attempts to produce a miscarriage upon herself, with resulting abnormal conditions, which might account for her death. It is manifest that this theory is in no manner inconsistent with the thought that a subsequent attempt, if any, to produce,or aid in producing, a miscarriage was necessary to save life, for it may have been possible that, if Miss Shade had been taking medicine or using instruments upon herself to relieve her pregnancy before consulting defendant, conditions may have been so induced, rendering a miscarriage necessary to save her life. At least the court cannot say, as a matter of law, that such conditions were not possible, and certainly there is nothing in counsel's opening statement which is inconsistent with such theory. The language of the court, in connection with the testimony of Dr. O'Keefe and Dr. Clark, indicates quite clearly that the court's rulings were made on the theory that the question of the necessity of a miscarriage to save the young woman's life was a matter of defense to be advanced by the appellant and sustained by affirmative testimony, when, as we have seen, the burden was upon the state to negative the existence of such necessity, and, until such requirement was satisfied by proof beyond reasonable doubt, no case would be made upon which a conviction could be sustained. State v. Aiken, 109 Iowa, 643, 80 N. W. 1073. That the ruling here complained of was error of very substantial character can scarcely be doubted. Counsel for the state seek to avoid the force of this objection by saying that, if error was thus committed, it was cured by the court's charge to the jury. It is true that the court, in stating the issues, said to the jury that, before a conviction could be had, it must be found from the evidence: (1) ...