State v. Stapp

• Decision Date: 28 October 1911
• Citation: 65 Wash. 438,118 P. 337
• Court: Washington Supreme Court
• Parties: STATE v. STAPP.

118 P. 337

65 Wash. 438

STATE v. STAPP.

Supreme Court of Washington

October 28, 1911

Department 1. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

M. Rob Stapp was convicted of abortion, and he appeals. Affirmed.

E. E. Boner and T. B. Bruener, for appellant.

W. E Campbell and A. Emerson Cross, for the State.

PARKER J.

The defendant, a practicing physician, was convicted of the crime of abortion in the superior court for Chehalis county, and sentenced to serve a term of nine months in the county jail. He has appealed to this court.

It is first contended that the trial court erroneously denied appellant's motion for a directed verdict in his favor. The grounds upon which this contention is rested are that there is no evidence showing appellant's connection with the crime charged, save the testimony of two witnesses, who it is insisted, were accomplices in the crime, and whose testimony the court should have held to be unworthy of belief as a matter of law. We do not understand that it is seriously urged that the crime was not proven. Indeed, it seems to us there is but little room for such contention; there being abundant uncontradicted evidence of that fact, independent of that of these witnesses. Their testimony is direct and certain as to the acts of appellant, and clearly sufficient to warrant the jury in concluding that appellant produced the miscarriage, unless we can say that their testimony, showing appellant's acts in that connection, is untrue. So we conclude that the credibility of these two witnesses is the only serious question presented upon the contentions of appellant touching the sufficiency of the evidence to sustain the conviction. We are not at all satisfied that the evidence establishes the fact that they were accomplices in the crime with such degree of certainty as to enable us to say, as a matter of law, that they were such; but, conceding that they were accomplices, their credibility is affected only by that fact, together with the fact that they denied knowledge of the cause of the miscarriage, and made some statements immediately thereafter inconsistent with their testimony. We assume that their testimony was not corroborated, in so far as it related to appellant's connection with the crime. We have heretofore recognized the rule that the testimony of accomplices, without corroboration, may be sufficient to support a conviction. State v. Jones, 53 Wash. 142, 101 P. 708; State v. Ray, 114 P. 439. So the want of corroboration alone is not sufficient to warrant our interference with the finding of guilt by the jury. The denial of the knowledge of the cause of the miscarriage by these witnesses and their inconsistent statements seem to have been prompted by fear of being accused of the crime. There is ground for the belief that they also made such statements for a like protection to appellant.

In support of the contention that the court should not allow this conviction to stand upon the testimony of these witnesses, counsel for appellant rely upon this court's holdings in Edwards v. State, 2 Wash. 291, 26 P. 258; State v. Concannon, 25 Wash. 327, 65 P. 534; State v. Pearson, 37 Wash. 405, 79 P. 985. A critical examination of those cases will show that there was much more reason for disbelieving the testimony of the witnesses there relied upon by the state than in this case. In the Edwards Case, the testimony was inherently improbable. In the Concannon Case, the witnesses were habitual users of opium, and more or less under its influence even during the trial. And in the Pearson Case, the witness was a confessed perjurer. We cannot hold that the jury and the trial judge, both having heard and seen these witnesses upon the stand, were bound to disbelieve them; and therefore we cannot interfere with the conviction upon the ground of insufficiency of evidence. We are lead to this conclusion after a careful reading of all of the evidence, which we deem unnecessary to review in detail here.

Appellant was a witness in his own behalf. On direct examination, he testified relative to his experience as a surgeon, showing that he had a large and varied experience as such. This was evidently for the purpose of qualifying himself as an expert witness. He then gave testimony tending to show that the miscarriage could not have been brought about by his acts, as claimed by the prosecution, assuming that the condition of the mother and the fetus were as shown by the state's evidence. He also gave testimony indicating his opinion that the operation was very unskillfully performed, based upon conditions as shown by the state's evidence. This was evidently for the purpose of creating the impression that it was not likely that a surgeon of his skill and experience would bring about a miscarriage in such an unskillful manner. On such examination, the prosecuting attorney questioned him to a considerable extent touching his experience as a surgeon, during which the following occurred: 'Q. Where did you perform your operations when you didn't perform them in your office? A. Usually at the sisters' hospital. Q. When was the last time in the sisters' hospital that you performed an operation? A. I think it was in August either July or August. Q. Of this year? A. Of this year; yes, sir; 1910. Q. Do you know what kind of an operation it was that you performed at that time? A. I don't remember exactly what it was. Q. Isn't it a fact, Doctor, that you haven't been in the sisters' hospital for over a year? A. No, sir; it is not a fact. Q. That is, for any surgical work? A. I have been in there within a year for surgical work. Q. What did you do when you went there? A. I don't remember exactly what the operation was; I think it was an operation--am I required to tell what the operation was? Court: Yes; go ahead. A. I think it was an operation for an abscess, if I remember correctly. Q. An abscess where? A. A pelvic abscess, if I remember correctly. * * * Q. Was it a man or a woman? A. A lady. * * * Q. Was this woman that was in the hospital pregnant? Mr. Boner: Object to the...