State v. Willson

• Citation: 113 Or. 450,230 P. 810
• Parties: STATE v. WILLSON.
• Decision Date: 02 December 1924
• Court: Supreme Court of Oregon

230 P. 810

113 Or. 450

STATE v. WILLSON.

Supreme Court of Oregon

December 2, 1924

In Banc.

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

E. O Willson was convicted of abortion, and he appeals. Reversed and remanded.

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

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

BURNETT J.

There is an Oregon statute reading 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.

The grand jury of Union county returned an indictment against the defendant on February 5, 1924, the charging part of which reads as follows:

"The said E. O. Willson on the 2d day of November, 1923 in the county of Union and state of Oregon, then and there being, did then and there unlawfully and feloniously use a certain metallic instrument, by then and there inserting said instrument in the vagina and uterus of one Hazel Barnes, said Hazel Barnes then and there being pregnant with a child, with the intent, then and there, thereby to destroy such child, said use of said instrument not being necessary to preserve the life of said Hazel Barnes, and said defendant did then and there unlawfully and feloniously thereby produce the death of the said child, contrary to the statutes," etc.

A trial of the defendant on a plea of not guilty resulted in his conviction, and he appealed.

It will be observed that there are two classes of acts by which the crime defined by the statute may be committed. They are the administration of any medicine, drug, or substance, and the use or employment of any instrument or other means. It is required by section 1437, O. L., that the indictment must contain:

"A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."

It appears in evidence, in substance, that the woman named in the indictment went to work for the defendant in his dental office in June, 1922, and continued there until August 17, 1923. She testified that after that date there was no coitus between her and any one until November 9, 1923, and none afterwards. Meanwhile, she had been regular in her menses and suspected nothing until November 18th, when her catamenia were due, but did not appear. The prosecution relies upon November 9th as the date of the intercourse resulting in the pregnancy charged in the indictment. The whole history of the charge in the indictment is included between November 9, 1923, and December 18th of that year, at which last date she claims she had a miscarriage.

One class of objections to the procedure of the court is that the prosecutrix was allowed to testify, over the objection and exception of defendant, that she became pregnant by him, and that he performed two separate and distinct operations upon her, resulting in the death of the fetus with which she was at the time pregnant, prior to the one named in the indictment. This is contrary to the rule laid down in this state in the following decisions: State v. O'Donnell, 36 Or. 222, 61 P. 892; State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258; State v. Start, 65 Or. 178, 132 P. 512, 46 L. R. A. (N. S.) 266; State v. McAllister, 67 Or. 480, 136 P. 354.

Each of the acts described by the witness, and which were objected to by the defendant, were complete crimes in themselves. If this procedure were permissible, it ought to be laid in the indictment with a continuando, but the statute says that the statement must be without repetition (O. L. § 1437), and it is axiomatic that the evidence shall correspond with the allegations of the accusing document. One consequence of supporting the procedure allowed in this respect by the trial court would be that no defendant could know how many violations of the law he would be called upon to defend upon a single charge; neither would he know when his prosecutions for some offense would come to an end. Another result would be that, having narrated in testimony all the instances constituting separate offenses, and failing in the prosecution of one, the state could take precisely the same evidence, and, by changing the date of the indictment, prosecute a defendant on the same testimony an indefinite number of times. The statute contemplates the statement in the indictment of a single offense, and that the evidence shall be confined to that charge alone of which the defendant has been informed. The principle is settled in this state by the precedents cited.

Another objection to the procedure was that, in the face of the allegations of the indictment confining the act to the use of "a certain metallic instrument," the state was allowed to produce testimony to the effect that certain drugs and medicines introduced and admitted in evidence were given by the...