The State v. Stapp
| Decision Date | 10 December 1912 |
| Citation | 151 S.W. 971,246 Mo. 338 |
| Parties | THE STATE v. JOSEPH STAPP |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. Francis H. Trimble, Judge.
Reversed and remanded.
Lavelock & Kirkpatrick for appellant.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
Appellant is a physician and was convicted under an indictment charging him in one count with having administered drugs to a pregnant woman, and also with having used instruments upon her body, all with the intent to produce an abortion. There is no allegation in the indictment as to whether the death of the woman or of a quick child was caused by the abortion.
Elizabeth Bales testified that she, being about four months pregnant, went, in company with Reed Taylor, the author of her trouble, to the office of the defendant about ten o'clock at night on June 26, 1910; that Taylor first had a talk with the defendant out of hearing of the witness; that the witness then entered defendant's office, and defendant told her that he had learned from Taylor that they (witness and Taylor) were in trouble and that he had told Taylor that he (defendant) had helped others and would help them. That defendant used instruments in her womb, and gave her some pills with instructions to take them the next day. There was no evidence that she ever took (swallowed) the pills. No inquiry was made of her at the trial as to whether she ever took the pills into her stomach. The abortion occurred on July 24, 1910. She was not confined to her bed until the day on which the abortion occurred, but stated in her testimony that she could "hardly go."
Several physicians testified as experts that an abortion would not occur from the use of instruments so long after such use, and there was no medical evidence to the contrary.
Reed Taylor corroborated the evidence of Miss Bales as to the visit to defendant's office and the purpose of such visit.
The defendant testified and denied the charge in toto. The court refused a demurrer to the evidence asked by the defendant and also refused the following instruction asked by him:
"The jury are instructed that the prosecuting witness is a competent witness, but the fact that she was implicated in the alleged transaction may be taken into consideration by the jury in determining the credibility to be given to her testimony."
The jury were instructed to find the defendant guilty if they found that he, under the circumstances and with the intent mentioned in the instructions, administered to her any drugs or used upon her any instruments by inserting them in her womb.
By instruction 3 the jury were told that the word "administered" meant the giving to her any drugs for the purpose of producing an abortion.
I. We are confronted with the fact that the abortion did not occur until four weeks after the alleged use of the instruments. The expert testimony was all to the effect that such result would not follow after so long a time. The jury were not necessarily bound by the expert evidence, and had the right to find that the abortion was caused by the use of the instruments notwithstanding such expert evidence. But on this record we cannot say that they did so find. They may have found that the abortion was caused by the drugs. Yet there is no evidence that she took the drugs into her stomach.
Instruction numbered 2 authorized them to find the defendant guilty if he administered the drugs with such an intent. There was no evidence on which to base it.
Instruction numbered 3 told the jury that to "administer" drugs to a person meant to "give" them to such person. To "give" drugs to a person under some circumstances may possibly include the idea that such drugs are taken into the stomach. It could not have any such meaning in this case, because the evidence was that defendant gave her the pills with directions to take them the next day.
The jury may have failed to find that any instruments were used and, under those instructions, may have...
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