Wilson v. State

• Decision Date: 17 June 1942
• Docket Number: 27.
• Citation: 26 A.2d 770,181 Md. 1
• Parties: WILSON v. STATE.
• Court: Maryland Court of Appeals

26 A.2d 770

181 Md. 1

WILSON v. STATE.

No. 27.

Court of Appeals of Maryland

June 17, 1942

Appeal from Circuit Court, Washington County; Jos. D. Mish, Judge.

Allen B. Wilson was convicted for unlawfully causing a drug to be used for the purpose of causing abortion, and he appeals.

Affirmed.

Calvert K. Hartle, of Hagerstown, for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and Charles F. Wagaman, State's Atty., of Hagerstown, on the brief), for appellee.

Before SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

DELAPLAINE Judge.

Dr Allen B. Wilson, a physician of Hagerstown, was found guilty by a jury in the Circuit Court for Washington County on the charge of unlawfully causing a certain drug to be used by Frances Jane Stanley on August 9, 1941, for the purpose of causing abortion. Code, art. 27, sec. 3.

Mrs. Stanley, a resident of Pennsylvania, 21 years old, testified that she was married in June, 1941, and that she called at Dr. Wilson's office on July 31, when he administered a salve which he claimed would produce a miscarriage within 24 hours. As the miscarriage did not occur, she returned to his office on August 5, when he gave her another treatment. Suffering severe pains on August 8, she went to Hagerstown again, arriving there about 3 o'clock on the morning of August 9. Dr. Wilson gave her pills to alleviate her pain, and shortly afterwards a miscarriage occurred. She swore that she paid him $110 for his services.

Dr. Wilson complains because Mrs. Stanley testified that she saw him in November, 1940, and when she saw him again on July 31, 1941, she said to him: 'I guess you know what I am here for.' He contends that this testimony prejudiced the jury against him because they could infer from it that he caused an abortion in November, 1940. It is a general rule that when a person is placed on trial for an offense, he should not be prejudiced by the introduction of evidence of other independent acts of wrongdoing. But while guilt cannot generally be established by proving that the defendant has committed other crimes, nevertheless it is firmly established that evidence of declarations and acts may be admitted to show intent, or a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Young v. State, 152 Md. 89, 136 A. 46; Meno v. State, 117 Md. 435, 440, 83 A. 759. The abortion statute in Maryland does not apply where a physician superintends a case of abortion occurring spontaneously as the result of an accident, constitutional debility, or any other natural cause. So, in an abortion case, where guilty intent is an essential element of the crime charged, the State can prove a relevant fact which tends to show the defendant guilty of the crime charged, notwithstanding that it may also show him guilty of a similar distinct offense. People v. Popescue, 345 Ill. 142, 177 N.E. 739, 77 A.L.R. 1199, 1209. Such evidence is admitted not because it is proof of another crime, but because of its relevancy to the charge in issue. For a person cannot, by multiplying his crimes, diminish the volume of competent testimony against him. State v. Adams, 20 Kan. 311, 319; State v. Sullivan, 139 Or. 640, 11 P.2d 1054, 1058.

Evidence of declarations and acts, which are an immediate accompaniment of the act charged and so closely connected with the main fact as to constitute a part of it, and without which the main fact might not be properly understood, are admissible as a part of the res gestae. The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of time, but by causal connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it. People v. Jarvis, 306 Ill. 611, 138 N.E. 102. For instance, in a case in Kentucky, where a physician was indicted after a woman did in his office as a result of an attempt to commit an abortion, it was held that the declarations of the physician tending to show that he had held himself out as an abortionist would be inadmissible to show that he had committed the act in question; but if he attempted to justify his act upon the ground of necessity, then the testimony was admissible to show his motive or intent and to negative the idea that he was acting upon his professional judgment and under a necessity of saving the life of the mother. Clark v. Commonwealth, 111 Ky. 443, 63 S.W. 740; 1 Wharton's Criminal Evidence, sec. 252.

The appellant also complains because the trial Court admitted in evidence a small box and tube, which were marked 'Luenbach's Paste,' found in his office on the morning of his arrest. It is well settled that a drug alleged to have been used for the purpose of abortion is admissible in evidence, if it was provided and used under the directions of the defendant. State v. Sharpe, 138 S.C. 58, 135 S.E. 635. It is likewise permissible to introduce in evidence any bottle or box alleged to have contained a noxious drug and to have been administered by the accused in violation of the law. Cook v. State, 90 Tex.Cr.R. 424, 235 S.W. 875; Baker v. State, 112 Tex.Cr.R. 254, 16 S.W.2d 248. Thus, in a Georgia case, where the defendant, charged with committing an abortion by means of instruments, complained because the State had shown that he had previously attempted to produce an abortion by means of drugs, Justice Lamar declared: 'It was, therefore, competent to offer the bottle, with the number and contents of the prescription, and to establish from the physicians what the effect of this medicine in such doses would have been. There was a logical connection between the two attempts to procure an abortion on the same female. Prior unsuccessful attempts to bring about the abortion may be shown.' Sullivan v. State, 121 Ga. 183, 48 S.E. 949, 950.

It is improper, of course, to admit a drug in evidence merely on the testimony of an expert that it is possible to use the drug for the purpose of performing an abortion, without any showing of some connection of the drug with the perpetrator or the victim of the crime. Riley v. State, 179 Md 304, 18 A.2d 583. In the case at bar, however, the box and tube were found by the county investigator in a wastebasket in the doctor's office a few hours after the miscarriage. The law of evidence does not require that an instrument, found at or near the place of an arrest, must be positively identified as the instrument used in the commission of the crime, before it may be used in evidence. A lack of positive identification of an instrument of crime affects the weight of the evidence rather than its admissibility. If a question is raised as to the connection of certain articles with the crime, the evidence should be submitted for the determination of the jury. People v. Davis, 106 Cal.App. 179, 289 P. 194; People v. Radovich...