State v. Proud

• Decision Date: 14 May 1953
• Docket Number: No. 7945,7945
• Parties: STATE v. PROUD.
• Court: Idaho Supreme Court

Page 1016

262 P.2d 1016

74 Idaho 429

STATE v. PROUD.

No. 7945.

Supreme Court of Idaho.

May 14, 1953.

On Rehearing Nov. 17, 1953.

Milo Axelsen and Kibler & Beebe, Nampa, for appellant.

Robert E. Smylie, Atty. Gen., Edward J. Aschenbrener, Frank Meek, Special Assts. Atty. Gen., Richard B. Eismann, Pros. Atty., Homedale, for respondent.

THOMAS, Justice.

On February 27, 1952, Darlene Pigg, accompanied by Viola Lukehart, who both resided in Boise, Idaho, went to Homedale, Idaho, for the avowed purpose of submitting to an abortion upon her person.

The two women were not acquainted in Homedale and after inquiring as to where appellant lived went to her residence. They had never met appellant before and, following a brief discussion on the porch of appellant's residence, upon invitation they went into the home of appellant and directly to the rear bedroom thereof with appellant.

There is a conflict as to what was stated and what took place in the bedroom. Mrs. Pigg, to whom we shall refer as the victim, and Viola Lukehart, to whom we shall refer hereafter as the accomplice, testified that they advised the purpose of their mission was to procure an abortion on the victim. While appellant denies this and in fact testified she did not know exactly why they had come, she did testify that she made an examination of the victim without the use of instruments and could not determine whether or not she was pregnant.

Both the victim and the accomplice testified that appellant had the victim lie on the bed, then washed her own hands in a large washbowl and proceeded with the use of something she held in her hand covered by a washrag to perform the operation, giving the victim certain instructions in connection therewith at the time. A few minutes later appellant told the victim she might sit up, then admonished her she might have cramps and feel a gush of water on the way home; immediately thereafter the accomplice paid appellant $10, the money belonging to the victim. Appellant then took a diary book out of a dresser drawer, gave the victim a pencil and envelope and informed her she would give the victim a number to write down, and directed her to send the envelope and number back to appellant when the victim was all right. No number had been assigned to the victim when a deputy sheriff and the prosecuting attorney of Owyhee County arrived at the scene with a warrant of arrest and a search warrant in connection with another like crime charged against the appellant and purported to have been committed upon another woman on or about February 15, 1952; the officers entered the bedroom where the warrant of arrest was served upon appellant and the officers then seized a knitting needle wrapped in a wet washrag, a large white washbowl with the fluid content thereof, and a record book or diary which was in the hands of appellant at the time. Shortly thereafter the victim, accompanied by the prosecuting attorney, went to the office of Dr. Wolfe in Homedale where she was examined relative to the alleged abortion after which the victim and the accomplice returned to Boise; the victim became ill after arriving in Boise; she was taken to one of the hospitals where Dr. Gudmundsen examined her the following evening and such examination revealed the victim was in a state of inevitable abortion which occurred on the morning of February 29, 1952.

Other aspects of the evidence will be discussed in connection with appropriate assignments of error. The matter was tried before a jury which returned a verdict of guilty. Appellant moved for a new trial which was denied whereupon judgment was rendered upon the verdict and appellant sentenced to the state penitentiary. From such judgment and from the order denying motion for a new trial, this appeal was taken.

It is urged that the trial court erred in denying appellant's motion to suppress certain evidence alleged to have been obtained by an illegal search and seizure.

It is asserted in this connection that such evidence was seized under a search warrant involving another and different crime alleged to have been committed by appellant upon another woman; it is strenuously urged that the evidence obtained thereunder should be suppressed.

The arrest and the search for and seizure of the property was made February 27, 1952, for an alleged abortion committed by appellant upon another party on the 15th day of February, 1952. The crime with which appellant was charged and convicted was not the earlier crime but one charged to have been committed on February 27, 1952, the day of, but immediately preceding, the arrest and seizure. The fact that appellant was charged with and convicted of the commission of a crime other than the one for which she was arrested and a search and seizure were had under such search warrant, or even incident to a legal arrest without a search warrant, does not of itself render the property seized incapable of being admitted as evidence upon prosecution for the subsequent crime charged if such evidence is otherwise competent. Property seized under a valid arrest, either with or without a search warrant, but as incidental to a lawful arrest, may be used in the prosecution of such person for a crime other than the one for which he or she was arrested or for which a search warrant was issued. State ex rel. Fong v. Superior Court of King County, 29 Wash.2d 601, 188 P.2d 125, certiorari denied 337 U.S. 956, 69 S.Ct. 1525, 93 L.Ed. 1755; State v. McKindel, 148 Wash. 237, 268 P. 593; State v. Deitz, 136 Wash. 228, 239 P. 386; Smith v. State, 215 Ind. 629, 21 N.E.2d 709; Haverstick v. State, 196 Ind. 145, 147 N.E. 625; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. The court did not err in denying the motion to suppress the evidence.

It is urged that the evidence is insufficient to support the verdict because evidence of the victim was without corroboration other than the evidence of the witness Lukehart who accompanied her to appellant's home and who, the evidence discloses, played an active part in procuring the alleged abortion; in this connection it is urged that Lukehart was an accomplice and her testimony could not corroborate that of the victim.

Under the statute the victim's testimony requires corroboration by other evidence. Section 19-2115, I.C. If the witness Lukehart be an accomplice her testimony likewise requires corroboration by other evidence. Section 19-2117, I.C. The evidence reveals that witness Lukehart accompanied the victim to the home of the accused for the express purpose of procuring the abortion and that she was on hand and present in the room at all times during the commission of the alleged abortion, and that she had played an active part therein and would be subject to prosecution for the offense with which the accused is charged as an accomplice. State v. Gilbert, 65 Idaho 210, 142 P.2d 584; State v. Grimmett, 33 Idaho 203, 193 P. 380; State v. Stacey, 153 Or. 449, 56 P.2d 1152; People v. Clapp, 24 Cal.2d 835, 151 P.2d 237.

The victim of the abortion could be prosecuted under section 18-602, I.C., while both the accused and the accomplice, but not the victim, could be prosecuted under section 18-601, I.C.; hence the victim is not an accomplice. People v. Wilson, 25 Ca.2d 341, 153 P.2d 720; State v. Willson, 113 Or. 450, 230 P. 810, 233 P. 259, 39 A.L.R. 84; 1 Am.Jur., p. 151, sec. 53. See also State v. Emory, 55 Idaho 649, 46 P.2d 67, where this principle is recognized and applied, and Anno. 139 A.L.R. 993.

It is not necessary nor do we decide the matter of whether a victim and an accomplice may corroborate each other. The testimony of both the victim and the accomplice was sufficiently corroborated in some material respects tending to connect the accused with the commission of the crime by the testimony of the officers who made the arrest, by a doctor in Owyhee County who examined the victim immediately following the arrest, and later by a doctor in Boise who attended her, as well as by other direct evidence and also circumstantial evidence which pointed to the guilt of accused. Although this additional testimony did not corroborate the victim or the accomplice in every detail it was sufficient to meet the requirements of corroboration. State v. Orr, 53 Idaho 452, 24 P.2d 679; State v. Gillum, 39 Idaho 457, 228 P. 334; State v. Smith, 30 Idaho 337, 164 P. 519.

It is urged that the court erred in admitting over objection testimony of the prosecuting attorney as to a statement made to him immediately following the arrest and at the scene thereof, but outside the presence or hearing of appellant, as to what the victim told him as to what took place; in this respect the prosecuting attorney testified that the victim stated to him that an abortion had taken place in the rear bedroom. This testimony was hearsay and it was error to admit it; however, the victim testified in minute detail as to what occurred at that time and place without objection; the matters related in this conversation were fully brought out by the victim; hence the admission of the testimony objected to under such circumstances, while erroneous, in nowise prejudiced appellant. State v. Wilson, 51 Idaho 659, 9 P.2d 497.

Appellant contends that the court erred in the admission in evidence over objection of a large washbowl and a portion of the cresolin solution found therein. Both the bowl and the solution were seized from appellant following a lawful arrest at the scene of the alleged crime and were definitely identified by the victim and the accomplice both of whom testified that they were used in connection with the abortion. These articles constitute a part of the res gestae of the crime and hence were properly admitted. State v. Robinson, 71 Idaho 290, 230 P.2d 693; People v. Stone, 93 Cal.App.2d 858, 210 P.2d 78; People v. Pierson, 69 Cal.App.2d 285, 159 P.2d 39; State v....