Swanson v. State

Decision Date26 January 1944
Docket Number27889.
Citation52 N.E.2d 616,222 Ind. 217
CourtIndiana Supreme Court

Appeal from Allen Circuit Court; William H. Schannen Judge.

Parrish & Parrish and Otto E. Grant, all of Fort Wayne, and Guy Dausman, of Goshen, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, Asst. Deputy Atty Gen., and Frank E. Coughlin, Asst. Deputy Atty. Gen., for appellee.


Appellant was convicted of the offense of criminal abortion charged in an indictment based on § 10-105, Burns' 1942 Replacement, § 2428, Baldwin's 1934. Among the numerous errors assigned in his motion for a new trial was the giving of the following instruction tendered by appellee: 'The law gives persons accused of crime the right to testify in their own behalf, but their credibility and the weight to be given to their testimony are matters exclusively for the jury. Therefore, in weighing the testimony of the defendant in this case, you have the right to take into consideration the manner of his testifying, the reasonableness or unreasonableness of his account of the transaction, and his interest in the result of the case, as affecting his credibility. You are not required to receive blindly the testimony of such accused person as true, neither are you at liberty to disregard his testimony, but you are to give it due consideration, and to determine whether or not his statements are true, and made in good faith, or only for the purpose of avoiding conviction.'

The giving of substantially the same instruction has been held to be reversible error in numerous cases, including the following: People v. Arnold, 1910, 248 Ill. 169, 93 N.E. 786; People v. Munday, 1917, 280 Ill. 32, 117 N.E. 286; Id., 254 U.S. 638, 41 S.Ct. 13, 65 L.Ed. 451; Donner v. State, 1904, 72 Neb. 263, 100 N.W. 305, 117 Am.St.Rep. 789; Fletcher v. State, 1909, 2 Okl.Cr. 300, 101 P. 599, 23 L.R.A.,N.S., 581; Bridges v. United States, 1909, 3 Okl. 64, 104 P. 370; State v. White, 1895, 10 Wash. 611, 39 P. 160, 41 P. 442. In Fletcher v. State, supra [2 Okl.Cr. 300, 101 P. 608, 23 L.R.A.,N.S., 581], the court says: 'We think that it is error for the court to single out any special witness, personally, and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness and should be treated by both the court and the jury just as other witnesses are treated--no better and no worse.'

It should be noted that while in the Illinois cases, and perhaps others, the instruction is condemned on other grounds, apparently the credibility of the testimony of a party is there permitted to be the subject of a separate instruction. In this respect the cases are out of line with the rule stated, supra, by the Oklahoma court and the rule which has been recognized in Indiana. The following cases are pertinent: Unruh v. State ex rel. Baum, 1886, 105 Ind. 117, 4 N.E. 453; Bird v. State, 1886, 107 Ind. 154, 8 N.E. 14; Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892; Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983; Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and derogatory emphasis, the subject of appellant's credibility could not be cured by instructions as to the credibility of witnesses in general. For this error the judgment must be reversed.

It is unnecessary to notice other alleged errors except such as might be the occasion of future controversy in another trial or appeal. One such is the sufficiency of the indictment to withstand appellant's motion to quash which was overruled. After charging use of instruments by appellant on June 17th in Allen County, Indiana, with intent to produce miscarriage, the indictment states, 'in consequence of which the said Ruth Eitniear then and there miscarried and languished until the 26th day of June, 1942, A.D. and died in the County of Lucas, State of Ohio * * *.' It is contended that the place of miscarriage is not certainly stated. In the briefs the question is coupled with the contention that there was a fatal variance because the evidence discloses that the foetus was expelled while decedent was at her home in Ohio. The offense is complete under this statute if either miscarriage or death results from the use of the instrument with criminal intent. Hauk v. State, 1897, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465. Here both miscarriage and death are pleaded in the conjunctive. Only one of the two need be proved. Howard v. State, 1921, 191 Ind. 232, 131 N.E. 403; Cooprider v. State, 1941, 218 Ind. 122, 31 N.E.2d 53, 132 A.L.R. 553. The words 'then and there' place the miscarriage in Allen County, Indiana, so the motion to quash was properly overruled. If the evidence was sufficient to prove that death resulted from appellant's criminal act, it was immaterial whether there was a miscarriage or where it occurred. If miscarriage alone were relied upon, a more serious question would be presented. We refrain from comment on the evidence.

A surgeon after detailing the pathological conditions found by him in an autopsy testified that the girl's death was caused by septicemia. Asked the cause of the septicemia he said 'An induced abortion.' There was no cross-examination. It is claimed that the answer was as to an ultimate fact exclusively within the province of the jury. The authorities as to admission of this kind of testimony are collected in notes in 78 A.L.R. 755 and 136 A.L.R. beginning on page 985. The former quotes 11 R.C.L., page 583, wherein the author expresses similar views to those caustically stated in Wigmore on Evidence, 3d Ed., § 1976 and notes. See also 32 C.J.S., Evidence, § 534. We think the matter is summarized in Cropper v. Titanium Pigment Co....

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