State v. Willson

• Decision Date: 17 February 1925
• Citation: 233 P. 259,113 Or. 450
• Parties: STATE v. WILLSON.
• Court: Oregon Supreme Court

233 P. 259

113 Or. 450

STATE v. WILLSON.

Supreme Court of Oregon

February 17, 1925

In Banc.

Appeal from Circuit Court, Union County; James A. Eakin, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 230 P. 810.

R. J. Green and F. S. Ivanhoe, both of La Grande (F S. Ivanhoe, of La Grande, Jesse Crum, of Elgin, and Green &amp Hess, of La Grande, on the brief), for appellant.

E. R Ringo, of La Grande (Ed Wright and E. R. Ringo, both of La Grande, on the brief), for the State.

BURNETT J.

This is a case charging manslaughter. The appellant was convicted of manslaughter by violating section 1900 O. L., in that he was said to have used a metallic instrument on the womb of a pregnant woman with intent to destroy the child of which she was pregnant, the same not being necessary to preserve the life of the mother. On appeal, the conviction was reversed and the cause remanded for further proceedings. Of this the state complains, and petitions for a rehearing, urging principally that the opinion was wrong in holding that the circuit court erred in admitting evidence of other similar crimes. Based upon five pages of citations of precedents, the prosecution essays to show that practically in all cases, the fact that a defendant has at some time committed a crime of the same nature may be shown in support of the charge on trial. The petition for rehearing seems to proceed on the supposition that a defendant once guilty is always guilty not only of other crimes that may be laid to his charge, without notice to him, but also, per consequence, of the offense for which he is being tried. However natural to zealous counsel this supposition may be, yet it is erroneous.

The general rule that the commission of a separate crime cannot be proven in support of the one named in the indictment is still in existence. The exceptions to this rule have not as yet superseded the time-honored precept of the law. On the contrary, as said in Underhill's work on Criminal Evidence, § 87, cited with approval by Mr. Justice Moore in State v. O'Donnell, 36 Or. 222, 61 P. 892:

"These exceptions are carefully limited and guarded by the courts, and their number should not be increased."

In Commonwealth v. Shepard, 1 Allen (Mass.) 575, in speaking of evidence of other criminal acts, Mr. Chief Justice Bigelow wrote:

"It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another."

Likewise, in Towne v. People, 89 Ill.App. 258, it was said:

"But the general rule is salutary, and departure from it is perilous, and hence courts are reluctant to extend the exception to the rule beyond well established lines."

Further, in State v. Smith, 103 Wash. 267, 174 P. 9, Mr. Justice Mackintosh declares: "There is no more insidious and dangerous testimony than that which attempts to convict a defendant by producing evidence of crimes other than the one for which he is on trial, and such testimony should only be admitted when clearly necessary to establish the essential elements of the charge which is being prosecuted. To establish guilty intent, unlawful motive, or criminal knowledge, it is permissible to show that the act charged against the defendant was one in a series of similar ones; but beyond this, the state cannot go and, for the purpose of securing a conviction, show the perpetration of other similar acts, even though committed in furtherance of a general scheme, where there is no proof required to establish intent, motive or knowledge, other than proof of the act charged itself. In other words, where the act charged against the defendant itself characterizes the offense, the guilty intent is proven by proving the act. Here the proof of giving of dry morphine on a prescription calling for morphine in solution was proof of the intent and nothing more was necessary to establish criminality."

The woman named in the indictment, when called as a witness for the prosecution, detailed the circumstances of the offense charged in the indictment, locating the time in November, 1923. In addition to that, prompted by counsel, in her narration she stated that two other previous abortions had been performed upon her by the defendant. This was against the objection of the defendant which was overruled by the court. She did not go into details about the method of performance of the other two abortions, or say anything as to the necessity of preserving her life on those occasions. In fact, she gave no one of the statutory ingredients of the crime. In State v. Kelliher, 49 Or. 77, 88 P. 867, the charge was forgery, and other forged instruments of like tenor, 30 in number, were introduced to show intent, but were authenticated only by the testimony of an accomplice. Speaking of those other documents, Mr. Justice Eakin said that:

"The prosecution assumed the same burden of proof as to each of the checks introduced to show guilty knowledge as in regard to the check for which he is being tried."

That is to say, applying the precedent to the instant case, even if the testimony were admissible, the prosecution had no right to have its witness make the bald statement that there were two other miscarriages, without including in her testimony the other statutory elements of the crime, viz., intent to destroy the child, and want of necessity to preserve the mother's life.

It is well at this point to dispose of the criticism of the opinion relating to the administration of drugs under the allegation of the indictment. It will be recalled that in the indictment, the only means charged to have been used in the performance of the criminal act mentioned was "a certain metallic instrument." The statute under which the indictment was drawn, reads thus:

"If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." O. L. § 1900.

It is almost like kindergarten to repeat the ancient rule that the allegations and the proof must correspond. Attention is directed on this point for example to the civil case of Knahtla v. Oregon Short Line, etc., Ry. Co., 21 Or. 136, 27 P. 91, where it is said in the syllabus that:

"Under a complaint which charges the injury complained of to have been caused by the negligence of a defendant railway company in permitting a bridge on its road to become and remain out of repair, and failing to keep proper watch and oversight of the same, the plaintiff will not be allowed to show that the bridge was constructed originally in an improper and negligent manner and this because the proofs and allegations must correspond with each other."

It would seem that if a great railway corporation could invoke this rule in its defense, the same privilege ought to be extended to an individual defendant who is on trial in a case involving his liberty. Clark v. Commonwealth, 111 Ky. 443, 63 S.W. 740, 23 Ky. Law Rep. 1029, was an abortion case in which the indictment charged that defendant caused the woman's death by inserting into her womb a sharp and dangerous instrument. The court said in reversing the conviction:

"It will be observed that the indictment charges that the defendant killed or caused the death of deceased by inserting into her womb a sharp and dangerous instrument, whereby she was wounded and lacerated and therefrom died. It is not competent for the commonwealth to prove, nor for the fact to be considered by the jury, that the death of deceased was caused by poison administered by defendant in any way or manner. He is not charged with that."

Here the statute prescribes what shall be considered criminal methods in the accomplishment of the crime named in the indictment, and if the state would rely upon any one of those unlawful elements for conviction, it should be alleged in the indictment. It is said in 22 C.J. 65, that:

"In legal acceptation, the term 'evidence' includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved."

As to apparent exceptions to the general rule for admitting the testimony of other criminal acts of the defendant, Mr. Justice Parker, in State v. Bassett, 26 N.

M. 476, 194 P. 867, said: "These various statements of the so-called exceptions to the general rule are but statements that any evidence which tends to show the guilt of the person on trial is admissible, regardless of the fact that it may show the guilt of the defendant of another crime."

For illustration: A plans to kill B, and, as preparation for the execution of his criminal design, he provides himself with a pistol. Finding it necessary to break into B's house to get at him, he also procures a crowbar, and actually does break into the house. It may be that with money honestly earned he goes to a gun store and buys a pistol and ammunition for cash, and likewise purchases a crowbar at a hardware store. Unquestionably, such actions could be shown by the prosecution as indicating deliberation and preparation for the commission of a crime. With equal propriety it could be shown that he stole the pistol from the gun store, broke into the hardware store and stole the crowbar, and likewise smashed the door of B's house with the crowbar, entered and shot B with the pistol....