State v. Power

• Decision Date: 13 February 1901
• Citation: State v. Power, 24 Wash. 34, 63 P. 1112 (Wash. 1901)
• Court: Washington Supreme Court
• Parties: STATE v. POWER.

63 P. 1112

24 Wash. 34

STATE v. POWER.

Supreme Court of Washington

February 13, 1901

Appeal from superior court, Spokane county: Leander H. Prather Judge.

Charles W. Power was convicted of manslaughter, and he appeals.Affirmed.

S. G Allen and Sullivan, Nuzum & Nuzum, for appellant.

James Z. Moore, Miles Poindexter, and Horace Kimball, for the State.

FULLERTON J.

The appellant was convicted of the crime of manslaughter.The charging part of the information on which he was tried is as follows: 'That the said defendant, Charles W. Power, in the county of Spokane, state of Washington, on or about the fifth (5th) day of December, eighteen hundred and ninety-eight (1898), did unlawfully, willfully, and feloniously employ an instrument, a more particular description whereof is to this informant unknown, in and upon the person of one Cora Reinhart, the said Cora Reinhart then and there being a pregnant woman, whom he, the said Charles W. Power, did then and there suppose to be pregnant, with the intent and on purpose thereby to procure a miscarriage of the said Cora Reinhart, the same being then and there not necessary to preserve the life of the said Cora Reinhart, and did then and there as aforesaid, by the means aforesaid, produce a miscarriage upon the person of the said Cora Reinhart, the said defendant, Charles W. Power, then and there being a physician and surgeon practicing his profession as such in the county and state aforesaid; the said Cora Reinhart being then and there, from and including the said fifth (5th) day of December, 1898, to the seventeenth (17th) day of December, 1898, continuously under the sole care and custody of the said Charles W. Power, and in the relation of patient to the said Charles W. Power; and the said Charles W. Power during the entire period aforesaid occupied the relation of physician and surgeon to the said Cora Reinhart.And he, the said Charles W. Power, did then and there, during the period aforesaid, as such physician and surgeon, willfully, feloniously, and unlawfully neglect the said Cora Reinhart, and did then and there willfully, feloniously, and negligently cause the person of the said Cora Reinhart to become, and did allow the same to remain, externally filthy and covered with vile and poisonous substances, and internally poisoned and inflamed and filled with poisonous and filthy matter and discharges, and did then and there, unlawfully, willfully, feloniously neglect, fail, and refuse to cleanse the person of the said Cora Reinhart, or to remove therefrom the poisonous discharges aforesaid, and during the entire period aforesaid did unlawfully, willfully, feloniously, and negligently place, keep, and allow to remain the person of the said Cora Reinhart in an offensive and unclean bed, and in offensive and unclean clothes, and in a filthy room, filled with vile, unhealthy, and poisonous atmosphere, and said room, clothes, and bed and the person of the said Cora Reinhart then and there being filthy, vile, and poisonous as aforesaid, by through and on account of the aforesaid neglect of the said Charles W. Power, and the aforesaid miscarriage unlawfully and feloniously produced upon the person of the said Cora Reinhart by the said Charles W. Power as aforesaid, and by the acts and things aforesaid, the said Charles W. Power did then and there unlawfully and feloniously inflict upon the person of the said Cora Reinhart certain mortal injuries, the same being the acts and things aforesaid, by and on account of which said mortal injuries, the same being the unlawful acts of the said Charles W. Power, the said Cora Reinhart, in the county and state aforesaid, on or about the seventeenth (17th) day of December, 1898, died.Wherefore this informant herewith informs and charges that the said Charles W. Power, in the county and state aforesaid, on or about the said seventeenth (17th) day of December, eighteen hundred and ninety-eight (1898), did unlawfully and feloniously slay and kill the said Cora Reinhart, then and there a human being, involuntarily, but in the commission of the unlawful acts of the said defendant aforesaid, thereby committing the crime of manslaughter, contrary to the statute in such case made and provided.'The information was founded upon section 7042 of the statute(Ballinger's), which provides: 'Every person who shall unlawfully kill any human being without malice, express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, shall be deemed guilty of manslaughter.'Another section of the statute(section 7068, Id.) makes it an offense for any person to administer to any pregnant woman whom he supposes to be pregnant, any medicine, drug, or substance whatever, or to use or employ any instrument or other means on her person, 'thereby to procure the miscarriage of such woman,' unless the same is necessary to preserve her life.

It is first contended that the trial court erred in refusing to sustain a demurrer to the information.The appellant calls our attention to the sections of the statute above cited, and argues therefrom that inasmuch as the latter makes it a substantive offense, punishable as such, for any person to administer drugs to or use instruments upon a pregnant woman for the purpose of procuring her miscarriage, such acts must be punished in the way the statute points out, under an indictment or information charging one or more of these specific acts alone, and cannot, therefore, be the unlawful acts which were intended to be included within the statute defining the crime of involuntary manslaughter.We cannot think this contention sound.The statute, it will be noticed, prescribes a punishment for doing these specific acts, without regard to the effect such acts may have had upon the person operated upon.The crime is completed when the prohibited acts are committed, and their effect is not made a material inquiry.Had the statute gone further, and made a death resulting from them a substantive offense, to be punished in the manner therein prescribed, it might be contended with some force that a person committing the acts causing the death would have to be informed against under the statute, and punished as the statute directs.But as the legislature has made the acts punishable as acts, without reference to their consequences, we cannot think it was intended to exempt a person causing the death of another by these means from being informed against and punished under the general statutes relating to unlawful homicides.

It is next contended that the court erred in admitting certain testimony.It appeared that the deceased resided near Rathdrum, in the state of Idaho, and that immediately preceding the time of her meeting with the defendantshe left her home and went to Spokane, where the defendant resided; that while preparing for her journey she had a conversation with her sister relative to the purpose of her going.The sister was examined as a witness on behalf of the state, in the course of which she was asked the following question: 'I will ask you if your sister, Cora Reinhart made any statement to you, at the time she was in the act of going and preparing to go to Spokane from Rathdrum, where she was going, and her purpose in going.'This was objected to by the appellant as incompetent, irrelevant, and immaterial.The court overruled the objection, and the witness answered: 'She said she was in trouble, and was going to Spokane to be treated by Dr. Power.'It is urged here that this testimony was hearsay, not part of the res gestae, and highly prejudicial to the defendant.The learned trial judge did not admit the testimony generally, nor as part of the res gestae of the main transaction.When ruling upon the objection he distinctly and clearly stated in the presence of the jury that it was competent only to explain the purpose of the deceased in leaving home, and as characterizing her act of going, and that he admitted it as explanatory of the nature, character, and object of that act.As thus limited, we think the evidence was properly admitted.It was certainly competent for the state to prove that the defendant left her home to go to Spokane, and that she there sought the defendant and placed herself under his treatment.The preparation she made for going, her condition of health at that time, and her conduct and demeanor, were likewise matters properly admissible in evidence, as a part of the history of the case, and necessary to its general understanding.On the same principle, her declarations made at the time she was preparing for the journey could be shown.They were in the nature of verbal acts, explanatory of what she was doing and of her object and purpose, and are part of the res gestae of this particular part of the entire transaction.The authorities generally hold declarations of this character admissible.In Greenl.Ev. § 108,...