State v. Snyder

• Decision Date: 09 June 1953
• Docket Number: No. 48168,48168
• Citation: State v. Snyder, 244 Iowa 1244, 59 N.W.2d 223 (Iowa 1953)
• Parties: STATE v. SNYDER.
• Court: Iowa Supreme Court

Page 223

59 N.W.2d 223

244 Iowa 1244

STATE v. SNYDER.

No. 48168.

Supreme Court of Iowa.

June 9, 1953.

Rehearing Denied Sept. 25, 1953.

Smedal & Maurer, Ames, for appellant.

Leo A. Hoegh, Atty. Gen., R. R. Dvorak, Asst. Atty. Gen., D. W. Countryman, County Atty., Story County, Nevada, for appellee.

HAYS, Justice.

Appeal from a conviction under Section 701.1, Code 1950, I.C.A., which provides as follows: 'If any person, with intent to produce a 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 * * *'.

The instant indictment was returned on November 20, 1951, and was one of sixteen indictments so returned. Each charged the defendant with violation of Section 701.1 and is identical except as to dates and women named therein. Each appears to be based entirely upon the testimony of the woman named therein. There was a plea of not guilty in the instant case.

As authorized by Section 780.10, Code 1950, I.C.A., notice of additional testimony was given to the defendant. It contained the names of the fifteen women, involved in the other indictments above mentioned, and stated that each would testify that the defendant had attempted an abortion upon her by the use of instruments, and that at said time she was in good health. They date back approximately eighteen months prior to July 27, 1951, the date alleged in the instant case. A motion by the defendant to quash the notice, or to strike therefrom the names of said women, was overruled by the trial court.

On the trial the county attorney in his opening statement to the jury, over defendant's objections, stated that to prove defendant's criminal intent, the state would show there was a group of girls, naming the fifteen above mentioned, who would testify to abortions committed upon them by the defendant, and related the details thereof. Mary Branco, the prosecutrix, was then called as a witness and she related in detail what occurred on July 27, 1951, at defendant's home.

Ardis Durnan, one of the women listed in said notice of additional testimony, was then called as a witness. She gave her name and address, objections by the defendant to her being called as a witness having been overruled. At the time she was called an attorney entered his appearance for her and the record shows the following proceedings: By the county attorney, 'Q. Are you acquainted with Dr. J. A. Snyder?' By her attorney, 'I object to that question, your Honor, for the reason that the answer might tend to expose her to public ignominy, public disgrace, tend to incriminate her'. By the court, 'In view of the statute, this witness having not appeared nor having any way waived her right to her statutory immunity, it is not for the court to say to what extent or in what way, and the witness having claimed, through her counsel under immunity, the court will have to respect it and the claimed immunity will have to be sustained'. The witness was then excused. Thereafter, the state called six of the other women, above mentioned, and approximately the same proceedings were had except that one of them, not being represented by counsel, claimed her own immunity. While three other witnesses, also named in said notice, appeared and testified to other matters, their testimony was stricken from the record and is not material here. The state then rested its case.

The defendant called one witness who established the fact that he, the defendant, was at the time a duly licensed physician in Iowa and had been since 1910. The defendant then rested his case and the testimony was closed. No question is raised by the defendant as to the sufficiency of the evidence to sustain the verdict.

I. The defendant asserts that the overruling of his motion to strike the names of said women from the notice and his objections to the appearance of the six women on the witness stand, was error and created such prejudice against him as to require a reversal of the judgment. Both questions involve the basic issue as to the admissibility of the proposed testimony and will be considered together.

It is urged that said names should have been stricken, and the objections to their appearance sustained because both the state and the court were advised in advance that said women, if called, would claim immunity and refuse to testify, and that the calling of them constitutes bad faith and was highly prejudicial to the defendant. The record shows that as to most of the said women, if not all, the state and court had been informed that such immunity would be claimed and they would refuse to testify. This, however, does not constitute valid grounds for either the motion or the objections. Immunity is a privilege of the witness only, and may not be urged by the party against whom the witness is offered. State v. Cobley, 128 Iowa 114, 103 N.W. 99; State v. Rowley, 198 Iowa 613, 198 N.W. 37, 199 N.W. 369. The fact that the state was advised in advance that immunity would be claimed is of no consequence. The general rule is, as stated in 58 Am.Jur., Witnesses, Section 53, that although a witness cannot be compelled to give incriminating testimony, he must, if properly summoned, appear and be sworn. His privilege is available only as a witness and cannot be extended so as to excuse him from appearing. If the witness himself cannot escape being sworn by claiming in advance that he will refuse to testify, certainly the defendant, against whom such witness is offered, cannot claim greater rights. See also, Annotations in 24 L.R.A., N.S., 769 and 6 A.L.R. 1614. There is no merit in this contention.

Defendant further contends error, as to said motion and objections, because such proposed testimony is incompetent because it tends to show the commission of other and distinct offenses. Competent evidence is that which the very nature of the thing to be proven requires. Black's Law Dictionary, Third Edition, p. 697. The general rule is that ordinarily evidence of a crime not charged in the indictment, is not admissible. There are, however, certain well-recognized exceptions. The rule, together with the exceptions, is well stated in State v. Vance, 119 Iowa 685, 94 N.W. 204. It is there stated that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for separate punishment or as aiding the proof that he is guilty of the crime charged, except to show intent, motive, absence of mistake or accident, common scheme embracing the commission of two or more crimes so closely related to each other that proof of one tends to prove the other, and, identify the person charged. See also, State v. Clay, 220 Iowa 1191, 264 N.W. 77; State v. Kinkade, 241 Iowa 1259, 43 N.W.2d 736; 22 C.J.S., Criminal Law, § 683. Section 701.1, supra, provides that abortions are illegal unless the same is necessary to save the woman's life, thus it is essential that the abortion was not necessary; in other words, to show a criminal intent upon the part of the doer of the act. This burden is upon the state, the rule being that when the offense is grounded on a negative or when the negative is an essential element of the crime, the burden is upon the state to prove it, at least by a prima facie showing. State v. Aiken, 109 Iowa 643, 80 N.W. 1073; State v. De Marce, 237 Iowa 648, 23 N.W.2d 441; Annotation, 153 A.L.R. 1218, 1266. The state, in the opening statement said such testimony would be offered to show the criminal intent of the defendant. Intent, being essential, is recognized as being within the exception to the general rule. The proposed evidence was clearly competent.

It is claimed that said motion and objections should have been sustained since, under a plea of not guilty, such proposed evidence was nor relevant, at least on the state's case in chief. Relevant evidence is, according to Black's Law Dictionary, Third Edition, p. 701, such evidence as relates to, or bears directly upon, the point or fact in issue, and proves or has a tendency to prove the proposition alleged. Defendant's theory is that, under a plea of not guilty, there is no issue of intent raised as the plea goes to the doing of the act, and in the absence of any attempt to justify the act, the intent is presumed if the act is established, citing respectable authority therefor. This precise question does...