State v. Willson

• Decision Date: 15 December 1925
• Parties: STATE v. WILLSON. [a1]
• Court: Oregon Supreme Court

241 P. 843

116 Or. 615

STATE v. WILLSON. ^[a1]

Supreme Court of Oregon

December 15, 1925

In Bank.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

E. O Willson was convicted of manslaughter as defined by Or. L. § 1900, and he appeals. Reversed with directions.

F. S. Ivanhoe, of La Grande, Jesse Crum, of Elgin and Green & Hess, of La Grande, for appellant.

Carl Helm and E. R. Ringo, both of La Grande, for the State.

BURNETT J.

The defendant was indicted for the crime of manslaughter, as defined in section 1900, Oregon Laws, 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."

He was convicted and has appealed. He was charged with the use and employment of some instrument which he inserted in the uterus of the prosecutrix whereby the child was destroyed with which she was alleged to have been pregnant at the time. The prosecutrix claims that her pregnancy. was the result of a single act of coition, which occurred November 9, 1923. She declared that her menstrual period was due November 18th and that the defendant used the instrument on her November 22d. On November 28th she was examined by a physician, whom she consulted, and on the 18th of December following she claims to have suffered a miscarriage as the result of the act of the defendant.

The principal contention for the defendant on this appeal is that there was not sufficient proof of the corpus delicti. The allegation of the indictment is in substance that the defendant by his acts, enumerated in that instrument, produced the death of the said child. It becomes necessary, therefore, to a certain extent, to analyze the testimony given for the state, and in so doing we may as of right under section 729, Oregon Laws, take judicial notice of the laws of nature, resorting, in aid of that quest "to appropriate books or documents of reference."

In support of the indictment it became necessary for the state to prove beyond a reasonable doubt that the prosecutrix was pregnant with a child. Indeed, she could not be pregnant, in the true sense of the term, with anything but a child. It was likewise necessary to prove that the object whose life was taken was a child, unborn and undeveloped it is true, but nevertheless a child. The testimony as to the employment of the instrument is that the prosecutrix, accompanied by her elder sister, called upon the defendant in his dental office in Elgin, on the 22d day of November, 1923, and he placed her in a dental chair, opened her vagina with a speculum, and took a metallic rod about 10 inches long, slightly curved at one end, known as a sound, and inserted the same into the womb, turning it around and causing her great pain. For the purpose of proving pregnancy, the prosecutrix testified to the sexual intercourse occurring between herself and the defendant on November 9, 1923; that her menses for that month were due on the 18th, 9 days afterwards. She declared that even so early as November 20th, 11 days after the single act of coition, when she first consulted the defendant about her condition, she had "morning sickness" accompanied by vomiting; that she urinated frequently; and that her breasts were sore. On the 28th of November, 6 days after the alleged operation, she consulted Dr. Landis, a physician in La Grande. Without testifying what he observed of the condition of the woman's person that indicated pregnancy, he declared dogmatically that she was advanced about six weeks in pregnancy. In passing, the query naturally arises how such a condition could arise between November 9th or any other date in November, and the 28th of the same month, but that is the state of the testimony on that point.

In State v. Simonis, 39 Or. 111, 65 P. 595, it is laid down as a rule by Mr. Chief Justice Bean that an expert, though thoroughly qualified as a witness, cannot be permitted to give an opinion upon facts known to him, and not communicated to the jury. He must first detail to the jury the facts on which he bases his opinion. In the testimony of Dr. Landis there is no history of distention or softening of the womb, no pigmentation of the breasts or of the vulva, no enlargement of the abdomen; in fact, he does not give any of the indications of pregnancy taught in all the works on obstetrics. All he stated about his examination on November 28th was his naked opinion that the woman was pregnant. Under the rule laid down in the case of State v. Simonis, supra, his testimony as to pregnancy may be disregarded. This medical expert witness also testified that on December 18th following, he was called to attend the prosecutrix and found that she was having a hemorrhage of the womb and that he curetted that organ. This was during the day after there had passed from her in the early morning the object described by her brother and sister as hereinafter mentioned. The witness was asked this question: "Now, what, if anything, did you procure as a result of this curettement?" He answered:

"I obtained the products of a six weeks' conception or pregnancy, together with the usual blood clots and membranes that go with it."

His answer does not describe the condition or texture of the tissues he obtained, so that either the jury or other experts could determine whether or not they were the product of conception. He admitted, on cross-examination, that he never at any time saw any fetus in all his treatment of the woman involved. All this testimony about the result of his treatment is subject to the same criticism according to the rule announced in the Simonis Case, the effect of which is that no allegation can be proven by the ipse dixit opinion of any expert unless the facts or phenomena upon which he bases his opinion are disclosed either by his own testimony or that of other witnesses. The only other testimony concerning the pregnancy of the prosecutrix was that of herself and her sister that her breasts were sore and that she experienced "morning sickness" and micturition. All these are at least only possible signs of pregnancy and frequently appear in nonpregnant women. 1 Peterson, Haines & Webster, Legal Medicine and Toxicology, 930 et seq.; De Lee, Principles and Practice of Obstetrics (3d Ed.) chapter 18; 2 Witthaus & Becker, Medical Jurisprudence, Forensic Medicine and Toxicology, 553 et seq.

The testimony for the prosecution is that prior to December 18th the prosecutrix had recurring pains in her uterus, which came with more and more frequency until on the morning of that day, as she was sitting upon a slop bowl, there passed from her a clot of blood about the size of an egg, in which according to the testimony of her sister and her brother, there was a meaty substance about 1 1/2 inches long. No other description of the object is given. It was not produced at the trial and was not submitted to any medical man for examination. Bearing in mind that November 9th is the date of the only coition in the case, the delivery of the alleged fetus on December 18th means that at best pregnancy had advanced only 39 days, or 5 weeks and 4 days. Dr. Landis testified to the...