State v. Timm

• Citation: 244 Wis. 508,12 N.W.2d 670
• Parties: STATE v. TIMM.
• Decision Date: 14 March 1944
• Court: Wisconsin Supreme Court

244 Wis. 508

12 N.W.2d 670

STATE

v.TIMM.

Supreme Court of Wisconsin.

Jan. 18, 1944.

Rehearing Denied March 14, 1944.

Appeal from a judgment of the Municipal Court of Milwaukee County; Roland J. Steinle, Acting Judge.

Affirmed.

Criminal action by the State of Wisconsin against Edmund W. Timm, on a charge of manslaughter in the second degree resulting from performance of an abortion, brought under sec. 340.16, Wis. Stats. The controlling facts are stated in the opinion.

Edward J. Yockey, Sr., and Frank L. Fawcett, both of Milwaukee (Gerald L. McDonough, of Milwaukee, of counsel), for appellant.

John E. Martin, Atty. Gen., James J. Kerwin, Dist. Atty. and Charles J. Kersten, Deputy Dist. Atty., both of Milwaukee, Wm. A. Platz, Asst. Atty. Gen., and Alfred R. Gandrey, Asst. Dist. Atty., of Milwaukee, for respondent.

FOWLER, Justice.

The defendant, a licensed physician, was prosecuted upon an information charging manslaughter in the second degree by causing the death of Hazel Williamson, a pregnant woman, by using an instrument with intent to destroy the child, without such operation being necessary or advised by two physicians to be necessary to preserve the life of said Hazel Williamson. The statute on which the action is based is printed in the margin.¹

Trial was to the court, a jury having been waived. The court found the defendant guilty and sentenced him to imprisonment for an indeterminate term of not less than four years nor more than four and a half years. From that conviction the defendant appealed.

The defendant admits Hazel was pregnant and admits performing two curettments upon her persom by use of instruments removing parts of the fetus without advice of two physicians as to its necessity to save the life of the mother. The woman died a few hours after the last curettment, but the defendant claims that the fetus was dead before he performed the first operation as a result of an abortion previously produced by some instrument. He claims that the evidence produced by the state is insufficient to support conviction under the statute because the credible evidence does not warrant a finding that the fetus was alive when his first operation was performed and he then knew the child was then dead and thus could not have had the intent to destroy it.

The state contends, not only that the conviction is supported by credible evidence, but that it does not have to prove that the child was alive when the defendant operated. It cites State v. Walters, 199 Wis. 68, 225 N.W. 167, and Foster v. State, 182 Wis. 298, 196 N.W. 233, in support of the latter claim. The contention made in these cases, however, turned on the question whether the pregnancy had existed long enough to render the fetus a ‘quickened child’ as the term ‘quick child’ is used in the common law. In the common law a ‘quick’ child is one that has developed so that it moves within the mother's womb. The point of these decisions is that whether a child has become ‘quickened’ or not, if death of the mother results from an abortion the person who performs the abortion violates the statute. This does not meet the contention of the defendant that when a child has already been destroyed and an operation is performed to remove the dead fetus, the one performing such operation can not have the intent to ‘destroy the child’ which is essential to constitute violation of the statute. In Foster v. State, supra, 182 Wis. page 301, 196 N.W. 234, it is said: ‘It is obvious that no death of a child can be produced where there is no living child.’ There is evidence, which if believed would warrant a conclusion or at least a reasonable doubt that the child was not alive when the defendant first operated. In this situation the burden was on the state to prove that the child was alive when the defendant operated. The question we have to consider therefore is, does the credible evidence warrant conclusion beyond reasonable doubt that the child was not already destroyed, in other words, was alive when the defendant began operating?

The sole question for determination on the appeal being as above stated a somewhat detailed statement of the evidence that the judge might properly deem credible tending to support the finding is required. Evidence which he might properly deem incredible need not be stated, as credibility of the witnesses was solely for him to determine. Evidence that he might rightly deem credible may be stated as follows:

On June 10, 1943, Hazel Williamson, a pregnant woman, who will hereinafter be referred to as the deceased, was driven from her home at Waunakee and left at Madison at 6:45 A. M. She arrived at the office of Dr. Timm, the appellant, who will hereinafter be referred to as ‘the defendant’, at Milwaukee during the afternoon. The defendant examined her condition, and was there paid in cash $200 as stated by the deceased ($100 as claimed by defendant). The doctor at 4 o'clock P. M. arranged with Mrs. Schlabach, who was a practical nurse and conducted a ‘lying-in home,’ in Milwaukee for a room and care for her. The defendant drove her to this home and left her there at 9 o'clock P. M. The deceased was taken to her room. She then appeared healthy and strong and was well-nourished.

On June 11, the deceased went from the Schlabach ‘home’ to the Western Union Telegraph office in Milwaukee and received $50 in cash which was wired to her from Waunakee. She delivered this to the office clerk in the defendant's office in the absence of the defendant between 11 and 12 o'clock. The clerk put the money in the defendant's desk, but did not tell him. At 2:30 P. M. the defendant asked the clerk if anyone had left anything for him. The deceased arrived back at the ‘home’ during the afternoon.

On Saturday, June 12, the deceased went to defendant's office for a ‘treatment’; to get a miscarriage performed; the treatment hurt her; the defendant was like a horse doctor, he treated her so rough. She was terribly sore at 7:30 P. M. Her temperature was 103 1/2 to 103 8/10 degrees. Mrs. Schlabach applied cold compresses and called defendant by telephone, but could not reach him.

On Sunday, June 13, the deceased felt better than on Saturday. Her temperature was 101 degrees.

On Monday, June 14, defendant curetted the deceased at 10 A. M. The deceased was not well. A part of a leg of the fetus was removed with instruments; it was not black, but dark; was not decomposed. The defendant said the deceased was too weak for a complete curettment; too weak to be removed to a hospital. At 8 P. M. the defendant completed the curettment; removed all of the fetus but the head; removed the placenta. The deceased was then very weak.

On Tuesday, June 15, at 1 A. M. Mrs. Schlabach gave the deceased a tablet as prescribed by the defendant; went to the kitchen; returned immediately and found the deceased was dead; called the defendant. The defendant came at 1:30 A. M. He worked five minutes to insert a soft catheter in the vaginal canal of the deceased's body; withdrew the catheter and put it back in his surgeon's bag. The defendant also asked for the deceased's purse; took from the purse a paper, tore the top from it, and put the rest of the paper back in the purse. The defendant gave the purse with the remainder of the paper in it to the coronor.

On Tuesday June 15, at 11:30 A. M. Dr. Tharinger made an autopsy of the body of the deceased. The lining of the vagina showed four tears or lacerations the healing process of which had not begun. The opening into the canal of the cervix which opens into the uterus showed a small laceration; the cervix also showed a puncture. The uterus was filled with a frothy bloody fluid and some soft blood clot, and contained the head of a fetus that indicated a pregnancy of from two to five months; the head was in a very early stage of maceration, which is a softening process such as would be produced by soaking in water, but that was not the cause of it; it (the head) was dead from four to five hours or two to three days; if longer dead the change in the head would have been more advanced; it might possibly have been dead four or five days, but that would have been an extreme length of time; there was no stage of decomposition. A coloration of the portion of the leg removed by the defendant in the first curettment above mentioned, would not indicate that the fetus was dead on June 10. The extremity of a live fetus projecting from a womb can be torn from the body without any great difficulty. The structure of a fetus is not so strong that it can not be torn. The deceased died of septicemia and a uterine hemorrhage the result of an abortion. The conditions found at the autopsy were consistent with the commencement of an abortion on June 10. The insertion of a soft catheter in the womb of a pregnant woman may produce an abortion. On the trial the defendant produced a soft catheter that he claimed projected from the deceased's womb that was fastened to a pack in the vaginal canal when he examined the deceased on June 10.

The paper above referred to as in the deceased's purse was introduced in evidence. Mr. Taylor, who drove the deceased to Madison on June 10 and who had been keeping company with her, wrote on the paper the names and addresses of three physicians and gave the paper to the deceased. The top name and address h...