Webster v. State

Citation1 Tenn.Crim.App. 1,425 S.W.2d 799
PartiesMinnie Lee WEBSTER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
Decision Date27 November 1967
CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Seymour S. Rosenberg, Memphis, Tenn., for plaintiff in error.

George F. McCanless, Atty. Gen., of Tennessee, Thomas E. Fox, Asst. Atty. Gen., Nashville, Tenn., for defendant in error.

OPINION

OLIVER, Judge.

Plaintiff in error, referred to herein as defendant, was convicted by a jury upon an indictment predicated upon T.C.A. § 39--301, in which she was charged with unlawfully and feloniously performing an abortion upon Kathryn Clayborn. The jury fixed her punishment at not more than one and one-half years in the penitentiary. The trial judge approved the verdict and entered judgment accordingly. That statute is as follows:

'39--301. Criminal abortion--Penalty.--Every person who shall administer to any woman pregnant with child, whether such child be quick or not, any medicine, drug, or substance whatever, or shall use or employ any instrument, or other means whatever, with intent to destroy such child, and shall thereby destroy such child before its birth, unless the same shall have been done with a view to preserve the life of the mother, shall be punished by imprisonment in the penitentiary not less than one (1) nor more than five (5) years.'

In this Court, upon an appeal in the nature of a writ of error, the defendant seeks reversal of the conviction and a new trial upon three Assignments of Error, the effect of which is (1) that the evidence preponderates against the verdict and in favor of her innocence, and (2) that it was prejudicial error to admit evidence of other alleged abortions by the defendant.

At the time of trial, February 20, 1967, Kathryn Clayborn was 20 years of age. She is the unmarried mother of two children, ages two and three years. In February 1966, while employed as a member of the Neighborhood Youth Corps, she became pregnant. She confided in and sought the help of her friend Bobbie Jean Crawford, whom she had known about three years, who was also a member of the Neighborhood Youth Corps, unmarried and had one child, and who thereupon made an appointment for Kathryn Clayborn with the defendant and accompanied her to the defendant's beauty shop on Tillman Street in Memphis, in March of 1966. Kathryn Clayborn had not met the defendant prior to that time. The defendant took these two girls into a back room and asked Kathryn if she had the 'tool' with her, whereupon Kathryn gave her a rubber catheter tube which she had brought along. Having had Kathryn to remove her underclothing and lie down on a couch, the defendant then used a speculum to open Kathryn's vagina and inserted the rubber catheter tube. When this procedure was completed, 'she told me I could get up and put my things back on and I paid her and left.' Kathryn gave the defendant $5 when they first entered the beauty shop, when a friend of the defendant came in and wanted some money and she didn't have any 'change' and asked Kathryn and Bobbie if either of them had 'a five.' She gave her $20 when the operation was completed, making a total of $25 paid to the defendant. She went to the defendant because she was pregnant and wanted to get rid of the child. Bobbie Jean Crawford was present during the entire procedure and the two girls left the beauty shop together.

The following afternoon Kathryn began to experience difficulty, went home from work about 12:00 or 1:00 p.m., removed a catheter tube from her body and about 3:00 or 4:00 o'clock that afternoon 'I had to go to the restroom and when I went in I felt something pass from my body but I guess it was a clot of blood or something but what it was I don't know because I didn't look at it.' It was a solid object and she flushed it down the commode. Thereafter she was sick for three days, 'I couldn't walk or lie down or eat or anything. I stayed at home about three days off work.' Her pains and discomfort continued and she consulted Dr. T. Kyle Creson, Jr. on March 28, 1966, who found upon examination that 'there was tenderness in the right lower abdomen where she described her discomfort and on pelvic examination there was a yellow discharge and a tender mass in the right adnexa, that's in the right tube area, low down in the abdomen, pelvis.' The doctor administered medication and she recovered completely without further difficulty or complication. The doctor testified that the condition he found could have been caused by insertion of a catheter tube into her vagina, and that it also could have been caused by a number of other things.

The defendant is thirty four years of age. Her husband deserted her several years ago, and since then she has had the entire responsibility of supporting her five children ranging in age from six to eighteen years. Entering a plea of not guilty, she flatly denied that she performed any abortion on Kathryn Clayborn and testified that she never performed an abortion upon any person at any time. She testified that she did not even know any of the girls who had testified she performed abortions upon them except Bobbie Jean Crawford and that she was in the beauty shop for a hair cut 'a long time ago' and later came there another time with a policewoman about the time or shortly prior to the time the defendant was charged with this offense; that Bobbie Jean Crawford called her with regard to a permanent and was told to bring a small permanent kit because the defendant was unable to get these supplies herself at that time and had only a very small amount on hand, because of credit problems brought about by a difficulty concerning an account; and that if she said anything to Bobbie Jean about a catheter tube she doesn't remember it; 'she didn't lead me to believe nothing about no catheter, Sir, she lead me to believe and I was under impression it was a permanent kit that she was concerned cause I told her, I told numbers to take and pick them up because I couldn't get them myself.' The defendant's position and insistences during the trial were that all of these girls who testified for the State that she performed abortions upon them must have mistaken someone else for her ('I been told a lot of times that I feature quite a few people'); or that they were trying to shield and cover up for someone else as the guilty party. (Tr. pp. 62--64)

When Bobbie Jean Crawford was called as a witness for the State, defense counsel asked the Court to excuse the jury, and in their absence objected to any testimony by this witness upon the ground that the defendant was charged in a separate indictment with performing an abortion upon her in 1965, the contention of defense counsel being that this would lead to testimony by this witness with respect to another offense of a similar kind committed by the defendant. The Court ruled that it was competent for the State to show 'one hundred abortions,' if not too remote in point of time, for the purpose of showing that the defendant intended to commit an abortion in this particular case: 'They can't use it to go to other than that purpose--to show system, scheme and device, guilty knowledge or intent, or identification in some cases, but this case doesn't have any identification problem involved.'

At the conclusion of the direct examination of Bobbie Jean Crawford, the Court instructed the jury as follows: 'If any evidence has been introduced in this case tending to show the commission by the defendant of similar offenses to that charged in the indictment as the case on trial, the jury may consider such evidence along with all the evidence in the case for the purpose of determining the motive and intent of the defendant whether or not the defendant had guilty knowledge of said acts, scheme or operation, whether or not the act charged in the indictment if proven, were not accidents or mistake, or were or were not parts of a plan, scheme, or system. It must always be kept in mind by the jury that the defendant is being tried on the charge in the indictment and that alone. You understand gentlemen? That charge alone that is charged with, in the indictment.'

Over the objection of defense counsel, Bobbie Jean Crawford testified that the defendant performed an abortion upon her in September 1965; that she took a catheter tube with her, and that the defendant followed the same procedure in her case as she did with Kathryn Clayborn; that she later removed her catheter tube, and that her abortion was successful and uneventful; that she met the defendant through a friend, Vivian Owens, who accompanied her to the defendant's beauty shop when her abortion was performed; that during 1966, subsequent to Kathryn Clayborn's abortion, she took Betty Jones and Robbie Calhoun and Ethel Mae James to the defendant for abortions; that she was with Betty Jones throughout the procedure and that the defendant followed exactly the same methods which she had employed with Kathryn Clayborn and herself; and that all of these girls had been members of the Neighborhood Youth Corps and all had attended Booker T. Washington High School together. No one knew the whereabouts of Robbie Calhoun and Ethel Mae James; an officer armed with a subpoena for Ethel Mae could not find her.

Betty Jones, called as a witness for the State testified over defense objection that she was 19 years old, finished Booker T. Washington High School in May of 1965; that she is taking nursing training, has never been married and has one child three years old; that she became pregnant in February 1966, and told Bobbie Jean Crawford about it; that Bobbie Jean told her she could help her and took her to the defendant's beauty shop in March of 1966; that the defendant conducted her and Bobbie Jean to the back room, had her remove her underclothing, and carried out exactly the same procedures with speculum and catheter tube; that for this operation she paid...

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