State v. Powers

• Decision Date: 30 December 1929
• Docket Number: 21890.
• Citation: 283 P. 439,155 Wash. 63
• Parties: STATE v. POWERS.
• Court: Washington Supreme Court

283 P. 439

155 Wash. 63

STATE v. POWERS.

No. 21890.

Supreme Court of Washington

December 30, 1929

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

W. N Powers was convicted of abortion, and he appeals. Affirmed.

Emmett G. Lenihan, of Seattle, for appellant.

Ewing D. Colvin and Cordelia M. Thiel, both of Seattle, for the State.

MAIN J.

W. N Powers and the nurse employed by him were charged by information with the crime of abortion. The information contained two counts, the first charging abortion upon the prosecuting witness September 13, 1927, and the second an abortion upon the same person June 11, 1928. The trial resulted in a verdict of acquittal of the nurse upon both counts. Dr. Powers was acquitted on the second count and convicted on the first. At the conclusion of the state's evidence a motion was made for a directed verdict which was overruled. The motion was repeated at the conclusion of all the evidence, and likewise overruled. After return of the verdict, a motion for a new trial was interposed and overruled. From the judgment and sentence entered upon the verdict, Dr. Powers appeals.

The facts essential to be stated are these: The prosecuting witness lived with her mother in Seattle, and one George Everetts, who was 55 years of age, was her greatuncle. Early in the year 1927, while the prosecuting witness was in the seventh grade in school, she had sexual intercourse with Everetts, and during the summer she became pregnant. She and Everetts then consulted a physician other than the appellant who examined her and told her that she was pregnant about two months. Shortly after this she and Everetts went to the city of Everett and were married. About a week later in company with Everetts she went to see the appellant, and Everetts stated to the appellant that he wanted the prosecuting witness examined. The appellant examined her, stated that the cost of curettement would be $60, and for them to return on Tuesday of the next week, which was September 13, 1927, for the operation. On the morning of that day the prosecuting witness attended school, wrote a geography test, and then asked the teacher to be excused, claiming that she was sick. The teacher excused her without sending her to the school nurse. A rule of the school was that a teacher should not excuse a pupil on account of illness unless she gave the appearance of being ill. The teacher when testifying did not remember anything about the matter other than the record which she kept at the time showed. Immediately after leaving school she met Everetts, and they together went to appellant's office. At this time the appellant had the prosecuting witness sign a statement which he prepared as he talked to her that morning. Among other things, the statement recites that the prosecuting witness had taken medicine and that she had begun to flow off and on. The $60 for the operation was paid at this time. The appellant gave the prosecuting witness a hypodermic in her right hip. The nurse who was informed against with the doctor prepared her for the operation, and when she was on the operating table and the nurse giving her the anesthetic the appellant washed her out preparatory to the curettement. After the operation she remained in a bed at the doctor's office for about two hours, then she returned home, remained in bed the balance of that day and a portion of the following day. The third day she again returned to school and continued therein. The prosecuting witness testified that at the time of the first examination the appellant did not take her temperature, but only placed one hand inside of her and felt around on the outside with the other. She testified that when she went for the operation the appellant did not take her temperature or her pulse. She also testified that about two weeks prior to the operation she had taken some medicine for the purpose of producing an abortion, but that it had no effect other than to make her sick the first day or two, and then she ceased taking it. She said that she was in good health, and was not flowing either at the time of the first examination or at the time of the operation.

The medical testimony offered by the appellant was to the effect that if the patient had an accelerated pulse, a rising temperature, and was flowing, curettement was recognized in the medical profession as proper. It was also testified that the rising temperature together with the rapid pulse and the flowing would indicate infection. The testimony of the appellant and the nurse in many material parts was in conflict with that of the prosecuting witness. It is unnecessary here to detail their testimony, because if the evidence was sufficient to take the question to the jury, then it was a question for them to determine.

The first question is whether the evidence presented a question for the jury.

Section 2448, Rem. Comp. Stat., provides that every person who, with intent thereby to produce the miscarriage of a woman, 'unless the same is necessary to preserve her life or that of the child whereof she is pregnant, * * * shall be guilty of abortion. * * *' Under this statute it was necessary for the state to prove that the curettement of the prosecuting witness in this case, of which the appellant was found guilty, was not necessary to preserve her life, and the state assumed that burden.

If the appellant in performing the operation did something which was recognized and approved by those reasonably skilled in his profession practicing in the same community with him, and the same line of practice, then it cannot be said that the operation was not necessary to preserve the life of the patient. That circumstantial evidence is competent to prove the absence of a necessity for an operation in order to preserve a woman's life is amply supported by authority. State v. Longstreth, 19 N.D. 268, 121 N.W. 1114 Ann. Cas. 1912D, 1317, and cases there...