State v. Rowley
| Citation | 195 N.W. 881,197 Iowa 977 |
| Decision Date | 22 November 1923 |
| Docket Number | 34294 |
| Parties | STATE OF IOWA, Appellee, v. CARRIE E. ROWLEY, Appellant |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED APRIL 4, 1924.
Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.
INDICTMENT for an attempt to procure the miscarriage of a woman. The defendant was convicted, and appeals.
Affirmed.
Herman F. Zeuch, Theodore F. Mantz, and Ladd, Warren & Ladd, for appellant.
Ben J Gibson, Attorney-general, and John Fletcher, Assistant Attorney-general, for appellee.
FAVILLE J. EVANS, STEVENS, ARTHUR, and DE GRAFF, JJ., concur. PRESTON, C. J. (dissenting).
An opinion in this case, filed March 7, 1922, appears in 187 N.W. 7. A rehearing has been granted, and said opinion is withdrawn.
The appellant is not a licensed physician or surgeon, but has been employed as a nurse. The indictment in this case is brought under Section 4759 of the Supplemental Supplement to the Code, 1915, which is as follows:
"If any person, with intent to produce the miscarriage of any woman, willfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the penitentiary for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars."
The evidence in behalf of the State tended to show that appellant performed an illegal operation upon a certain woman by the use of an instrument, and that the same was done with the intent to produce a miscarriage, and that such miscarriage was not necessary to save the life of the woman upon whom the operation was performed. All of the essential ingredients of the crime were supported by proof in behalf of the State.
I. The evidence shows that the sheriff had in his possession a warrant for the arrest of the appellant, and went with the same to the house of the appellant, and there arrested her. He had no search warrant. It was his contention that he informed the appellant that he was going to search the premises where the arrest was made, and where appellant lived, and that at that time appellant said to the sheriff, "Go to it, you won't find anything here," and objected to the search, and said she wished he would not do it. He, however, proceeded to make a search of the premises, and in so doing found certain instruments which were identified and offered in evidence, the same consisting of catheters, forceps, a sound or probe, a speculum, and other instruments. The appellant objected to the introduction of these instruments in evidence, it being affirmatively established that the officer, although clothed with a warrant for the arrest of the appellant, had no search warrant at the time, and that the instruments were not found upon the person of the appellant.
The case squarely presents the proposition as to whether or not evidence which is obtained by an officer by illegal or unauthorized search, although material and germane to the question in issue, can be received in evidence against one charged with crime, without violation of constitutional rights.
Since the original opinion in this case was written, we have had before us for consideration the case of State v. Tonn, 195 Iowa 94, 191 N.W. 530, wherein a majority of the court reached a conclusion upon this question contrary to the views expressed in the opinion filed in this case. In the Tonn case we held that evidence obtained by an unlawful search was admissible in evidence upon the trial of one charged with crime, where the same was competent and material, and that a court would not try the collateral issue in the case with regard to the illegality of the search, or determine the question therein raised by a petition for a restoration of the property to the defendant.
The views of the court are fully set out in the majority and dissenting opinions filed in the Tonn case, and it is unnecessary that we repeat what was therein said. The majority of the court now adhere to the views expressed in the majority opinion in the Tonn case, and it is controlling on the question in the instant case. Since the Tonn case was decided, a number of cases have been decided in other courts, sustaining the same position taken by the majority in the Tonn case. Some of said cases so holding are as follows: State v. Ryan, (Minn.) 194 N.W. 396; Rosanski v. State, 106 Ohio St. 442 (140 N.E. 370); People v. Vulge, (Mich.) 194 N.W. 582; Jones v. State, (Ala. App.) 96 So. 721; Lott v. State, (Tex.) 251 S.W. 1070; State v. Prescott, (S. C.) 117 S.E. 637; State v. Green, (S. C.) 114 S.E. 317; Georgis v. State, (Neb.) 193 N.W. 713; Billings v. State, (Neb.) 191 N.W. 721; Clements v. State, (Ala.) 95 So. 831; Bell v. State, (Tex.) 250 S.W. 177; State v. Chuchola, (Del.) 120 A. 212; Gurski v. State, 93 Tex.Crim. 612 (248 S.W. 353); Argetakis v. State, (Ariz.) 212 P. 372; Commonwealth v. Wilkins, (Mass.) 138 N.E. 11; State v. Fleckinger, (La.) 93 So. 115; State v. Kanellos, (S. C.) 115 S.E. 636; Smuk v. People, 72 Colo. 97 (209 P. 636); People v. Wren, (Cal. App.) 210 P. 60; State v. Myers, 36 Idaho 396 (211 P. 440); Griggs v. State, 18 Ala.App. 467 (93 So. 499); Venable v. State, (Ark.) 246 S.W. 860; State v. Clary, (La.) 94 So. 385; State v. Creel, (La.) 94 So. 433; State v. Hesse, (Minn.) 191 N.W. 267.
II. The appellant alleges that the court erred in admitting in evidence the declaration of the appellant to the effect that she was engaged in the business of producing abortions. This declaration was in the nature of an admission. The question of intent was involved in the case, under the statute, and the court did not err in admitting this evidence.
III. Over the objection of appellant, the court admitted in evidence testimony tending to show that appellant had committed abortions upon other women than the one named in the indictment.
Unquestionably, the general rule is that, upon the trial of a criminal case, evidence of the commission of other similar crimes by the defendant is inadmissible. The rule has been declared so frequently that citation of authorities is unnecessary to support it. There are, however, exceptions to this rule, and particularly so where a question of intent is involved. The statute under which appellant was indicted provides that the act must be done "with intent" to produce the miscarriage of any woman. It also provides that the act is not criminal in the event that such miscarriage shall be necessary to save the life of the person upon whom the operation is performed.
In this case, the appellant denied that she performed any operation whatever, and it is, therefore, urged that evidence of other similar crimes for the purpose of showing intent was inadmissible. The State, however, was compelled to establish, as part of its main case, not only the fact of the use of the instruments, but that they were used with the specific intent charged, and that it was not necessary so to do in order to save life. Notwithstanding the appellant's denial in evidence of having in any manner performed the act charged, the burden rested upon the State, not only to prove that the appellant used an instrument as charged, but that it was done with the intent to procure a miscarriage, and that such intent was an unlawful one, because of the fact that the operation was unnecessary, to save life. The fact that appellant may have performed other similar acts closely connected in time with the act in question, and that such acts were performed with the intent to produce miscarriage, and that the same were not necessary to save life, would have a legitimate bearing upon the question of the intent of appellant in the instant case, if the jury believed the evidence of the State to the effect that the act was, in fact, performed.
The precise question before us was considered by the Supreme Court of Illinois in Clark v. People, 224 Ill. 554, 79 N.E. 941, wherein it is said:
The same question came before that court again in People v. Hobbs, 297 Ill. 399, 130 N.E. 779, wherein the court said:
See also People v. Schultz-Knighten, 277 Ill. 238, 115 N.E. 140; State v. McCurtain, 52 Utah 63 (172 P. 481); People v. Seaman...
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