State v. Scown, 46139

• Decision Date: 14 April 1958
• Docket Number: No. 46139,No. 2,46139,2
• Citation: 312 S.W.2d 782
• Parties: STATE of Missouri, Respondent, v. Fraulein SCOWN, Appellant
• Court: Missouri Supreme Court

Page 782

312 S.W.2d 782

STATE of Missouri, Respondent, v. Fraulein SCOWN, Appellant.

No. 46139.

Supreme Court of Missouri, Division No. 2.

April 14, 1958.

Rehearing Denied May 12, 1958.

Shaw & Smith, Clayton, for appellant.

John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was indicted and convicted upon a charge of abortion under Section 559.100 RSMo 1949, V.A.M.S., and sentenced to a term of three years in the penitentiary. Motion for new trial was duly filed and overruled, and this appeal followed. The case has been fully briefed for the appellant, so we shall confine our consideration to the points raised in that brief. Supreme Court Rules, rule 28.02, 42 V.A.M.S.

The sufficiency of the evidence for submission is not attacked, but its sufficiency to support an instruction is denied; we must therefore state the facts in some detail. The prosecuting witness, Wanda Brown, was married, and had three small children. Her testimony showed, in substance, the facts which are now related. She was 'pretty sure' she was pregnant, and took two 'shots' from a doctor in an effort to eliminate the condition; she described in some detail the symptoms which had convinced her that she was pregnant. The doctor who gave her the 'shots' told her that they had done no good, and gave her a telephone number and the name 'Julia' on a slip of paper. After one or more telephone calls it was arranged for her to be at a certain doorway in the Medical Center at Hampton Village at 8:00 p. m. on Saturday evening, April 28, 1956. She went there and, with three other girls who also came, waited a short time. A little after eight a red-headed woman, whom she definitely identified as the defendant, appeared on the scene, counted them, and escorted them to a blue and white Cadillac car on a near-by parking lot. They all got in and defendant drove away. During the trip the driver took from the glove compartment several pairs of sun glasses with dark paper pasted over the lenses, and had all four girls put them on; she then stated that 'the place we were going was her house and she didn't want us to know where it was * * *.' She also explained to the group that on that evening 'she would open our wombs, it wouldn't hurt and we would be given sleeping pills * * * that Sunday morning * * * our wombs would be scraped and that we would be given gas * * *.' After a time the girls were told by the defendant to get down on the floor of the car; three of them did so, and Mrs. Brown lay down on the back seat. The car was driven into a basement garage and the girls, escorted by defendant, all went up and through the kitchen to bedrooms which they occupied during their stay, two to a room; they were told to undress. The witness at this point identified photographs of various parts of the interior of that house, stated also that she had seen the house later in company with two assistant prosecutors, and that it was on Tuxedo in Webster Groves. After locating these girls in their rooms, the 'red-head' gave them a talk, and gave each of them a little envelope with some 'tablets' in it for use if they 'flooded' in the next two months; the witness identified at the trial her own envelope and pills; the girls were then locked in their rooms, and defendant took them, one at a time, to the kitchen. Mrs. Brown had told the defendant after she arrived at this house that she did not have the required $125, but had only $60; defendant was 'pretty mad at me,' but finally agreed that the witness could take the balance to the doctor who had started her on the expedition. At some time during that evening the witness was taken by defendant to the kitchen, clad only in her gown; she gave defendant her $60, got on the table (which was padded), and placed her feet on the edge of the table 'like * * * in stirrups in a doctor's office.' A piece of cloth was pinned over her eyes by the defendant; she then felt 'something either being inserted or being pulled out of me'; on cross-examination she stated that she felt something either being inserted or pulled out of 'my womb or vagina.' She had previously placed nothing there. The blindfold was removed and Mrs. Brown was taken to her room by defendant; she 'cramped * * * hurt awful through my stomach,' not having done so previously; later defendant gave her a sleeping pill. The next morning she was again taken to the kitchen by defendant and got on the table, defendant placing her legs; she was again blindfolded, but before that she saw the door from the basement moving 'back and forth' a little; she was given gas and lost consciousness. When she regained consciousness defendant removed the blindfold, no one else was there, and she was again taken to her room, where she dressed. Somewhat later, all four girls went to the basement with defendant and again they were given the dark glasses; they got in the car, distributing themselves on the floor and prone on the back seat as previously. Three of them were taken by defendant to the 'Manchester Loop,' and one got out on the way. Mrs. Brown had never been advised by any physician to have an abortion and her health was good, both before and after these experiences.

Mrs. Gertrude Knetzger testified that she owned the property at 415 Tuxedo (the location in question) and described it, identifying the various photographs; she further testified that on February 12, 1956, she rented the property to a 'Mrs John Anderson' who came to her home and paid her $75 at that time; she identified 'Mrs. John Anderson' as the defendant. She produced her own copy of the typewritten rent receipt and also testified that she received the rent due on March 11 and April 11 by money order through the mail, and that she gave this lady the keys on February 12.

Police officers of Webster Groves identified the photographs of the interior of the house, and testified: that a car was seen to enter the basement garage at 415 Tuxedo about 8:30 on the evening of April 28, 1956; that a Cadillac car was driven out of that basement after 9:00 the next morning, that they located this car shortly afterward in Maplewood, recognized defendant as the driver and saw three other women in the car; the other women got out at the bus stop at the 'City Limits Loop.' When defendant was arrested at her home on May 3, they found in a drawer and took, along with various other articles, receipts for gas and water deposits on the premises at 415 Tuxedo, issued to 'John Anderson.' These were offered and received in evidence. One of these witnesses further testified that defendant was taken to 415 Tuxedo and that she 'let us in with a key she had.'

Betty Pierce, one of the girls who was with Mrs. Brown throughout the events related, testified for the state, without objection: that she was married and had two small children; that she had also obtained the name 'Julia' and the telephone number; that she had called, and after making the necessary arrangements, she went to the doorway in Hampton Village on the evening of April 28, 1956. Three other girls were also there, and soon a 'red-headed lady' came and picked them up; that enroute this woman explained that 'we would be packed on Saturday night and on Sunday morning we would be given anaesthetic and our wombs would be scraped.' Her further testimony, also given without objection, substantially confirmed all the details of Mrs. Brown's testimony up to the point where she (Betty Pierce) was actually taken into the kitchen. Among other things she thus testified that she paid $125 to the 'red-headed lady' as 'the fee for the abortion.' Over objection, as will be discussed subsequently, this witness testified to substantially the same course of procedure in the kitchen as did Mrs. Brown. During that part of her testimony she stated that the blindfold slipped a little and she saw a 'dark-headed lady'; it was fairly indicated that this other woman 'packed' her on Saturday evening. Mrs. Pierce recalled Wanda Brown, the prosecuting witness, as one of those who was with her on these two days, and in fact that Mrs. Brown telephoned Mrs. Pierce's husband from the 'loop' to come and get her. Mrs. Pierce did not positively identify defendant as the 'red-headed woman'; she stated variously that 'it could be that lady there,'--'she looks something like her * * * this lady's hair is fixed different * * *,' but that the red hair was similar. Certain other phases of the evidence will be referred to hereinafter.

The first and most serious point raised concerns the scope of the cross-examination of the defendant. On direct examination she stated her name, that she had never been convicted of any criminal offense, and that she did not, on the evening of April 28, 1956, at about 8:00 p. m. or on April 29, 1956, perform an abortion upon Wanda Brown. We may state here, that in view of the nature of the testimony and the theory upon which the case was tried, we consider this as equivalent to a denial that she had aided, abetted, or in any way participated in any such abortion. We also note that this denial, in effect, was a general denial of the charge, for these two dates were the only ones upon which the state claimed that criminal acts had been performed. On cross-examination the defendant was asked, and answered over proper objections, the following questions: whether she had ever rented the house at 415 Tuxedo; whether she knew Mrs. Knetzger whether she went to Mrs. Knetzger's home in February, 1956; whether she was in the premises at 415 Tuxedo in April, 1956; whether she picked up Wanda Brown about 8:00 p. m. on April 28, 1956, at Hampton Court; on what date she was arrested; whether she knew Julia Rackey (who was indicted as a co-defendant, but from whom a severance was granted); whether she knew Betty Pierce; whether she had seen the things portrayed in the state's photographs of the interior of the house in question; whether she had...