State v. Newell

• Decision Date: 10 November 1916
• Docket Number: No. 19956[9].,19956[9].
• Citation: 134 Minn. 384,159 N.W. 829
• Parties: STATE v. NEWELL.
• Court: Minnesota Supreme Court

134 Minn. 384

159 N.W. 829

STATE

v.NEWELL.

No. 19956[9].

Supreme Court of Minnesota.

Nov. 10, 1916.

Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge.

Mary Newell was convicted of manslaughter in the first degree, and appeals. Affirmed.

Syllabus by the Court

The evidence in a prosecution for manslaughter resulting from an abortion is held to sustain the verdict of guilty.

Declarations made by the woman while under treatment, and before the abortion, as to the treatment given by the defendant were competent, following State v. Hunter, 131 Minn. 252, 154 N. W. 1083, L. R. A. 1916C, 566, and the evidence is held such as to justify the application of the rule stated.

The testimony of a woman that shortly prior to the date of the crime alleged the defendant had offered to perform an abortion upon her was competent in proof of the defendant's guilty or criminal intent.

Whether a new trial should be granted upon the ground of newly discovered evidence was within the sound discretion of the trial court, and it was not abused. Lane & Malmberg and Donald G. Hughes, all of Minneapolis, for appellant.

Lyndon A. Smith, Atty. Gen., and John M. Rees, Co. Atty., Walter H. Newton, Asst. Co. Atty., and A. T. Conley, all of Minneapolis, for the State.

DIBELL, C.

The defendant was found guilty of the crime of manslaughter in the first degree in the commission of an abortion upon one Pansy Miller. The crime is defined by G. S. 1913, § 8610 (R. L. 1905, § 4882). The defendant appeals from an order denying her motion for a new trial upon the ground of insufficiency of evidence and errors of law, and from an order denying a like motion upon the ground of newly discovered evidence.

[1] 1. In passing upon the defendant's claim that the evidence does not sustain the verdict we do not undertake to detail the testimony. Mrs. Miller was a young married woman. She went to the home of the defendant with the avowed purpose, if the testimony of her husband and her mother is credited, of procuring an abortion. There is evidence that there was an abortion. The evidence that the defendant caused it is largely circumstantial, but it rather clearly points to her guilt. The question was for the jury, and the evidence very amply supports the finding.

[2] 2. One item of proof was the testimony of Mrs. Dudlin, the mother of Mrs. Miller, of a declaration of the latter made on February 14, 1915, as to the treatment given by the defendant. Mrs. Miller went to the home of the defendant on February 7th. On February 13th she left and went to her mother's home. She returned to the defendant's home on February 15th, and died there on February 17th. In the meantime she was receiving some kind of treatment. The declaration referred to occurrences on February 9th. It is conceded that if the declaration was prior to the abortion and while Mrs. Miller was receiving treatment preparatory to it or in the course of its accomplishment it was admissible as part of the res gestae within State v. Hunter, 131 Minn. 252, 154 N. W. 1083, L. R. A. 1916C, 566, where the question received exhaustive consideration. While the evidence strongly suggests that the abortion was complete on February 9th, a consideration of it brings us to the conclusion that it is not conclusive, and that it might be found that it was incomplete at the time of the declaration. The court submitted the question of fact to the jury with the statement that if the abortion was complete at the time of the declaration, it was without probative effect, and if incomplete it could be considered as part of the res gestae. The court committed no error in its ruling or...