People v. Hager

Appellate Division of the Supreme Court of New York

People v. Hager

181 A.D. 153, 36 N.Y. Crim. 176, 168 N.Y.S. 183, 1917 N.Y. App. Div. LEXIS 9083

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1917

StatusPublished

Cited by1 cases

This text of 181 A.D. 153 (People v. Hager) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hager, 181 A.D. 153, 36 N.Y. Crim. 176, 168 N.Y.S. 183, 1917 N.Y. App. Div. LEXIS 9083 (N.Y. Ct. App. 1917).

Pincite

Opinions

Jenks, P. J.:

The defendant, a physician, was convicted of a violation of section 1142 of the Penal Law. Even with disregard of the defendant’s proof so far as it is contradictory or contrary to the proof of the People, I think that he could not have been convicted of selling or giving away a drug and medicine for causing unlawful abortion or purporting to be for causing unlawful abortion. He gave a prescription and furnished certain pills. The prescription appears to be nothing more than a formula for nausea. Chemical analysis of the pills detected but one substance in a quantity sufficient for identification, namely, an unstated quantity of aloin, which is an active cathartic, a purgative glucosid, made from aloes. (Cent. Diet.; Borland’s Am. Illus. Diet, of Medicine [8th ed.].) There is no proof that the pills in the dose recommended would be an abortifacient for the woman in the condition represented by her. There is no proof that the pills purported to be “ for causing unlawful abortion,” a phrase that means they imported to be for that purpose, as, e. g., by inscription upon the box or bottle that contained them.

But this statute also prohibits holding out representations that the drug or medicine “ can be so used or applied, or any such description as will be calculated to lead another to so use or apply,” etc. The information, which is to be regarded as an indictment, specifies such doings by the defendant, and was, therefore, sufficient to sustain a conviction upon this part of the said statute. (Bork v. People, 91 hi. Y. 5; People v. Corbalis, 86 App. Div. 531.)

The two witnesses for the People were detectives who were decoys. But they were not within the category of private detectives, but were members of the police force assigned to a special squad, and acted presumably in dis[155]*155charge of prescribed official duties. There is no dispute that the defendant, after he had been told by one of them that the other, who posed as her sister, supposed that she was pregnant, made an appointment for the latter at his office. There is no dispute that the two women thereafter came to his office, that one of them represented that the absence of her menses caused her to suppose that she was pregnant, that the defendant thereupon took her into his private office apart from her companion, consulted with her upon her supposed condition and thereafter in the presence of both women wrote the said prescription and furnished the said pills. There is, however, this variance: the two detectives testify that he was asked in effect how long before the menses would be brought on, and he replied, in two or three days, but he insists that this statement was not made, and that his purpose was to secure a relaxation of the bowels preliminary to a proposed examination. Both they and he agree that he told the supposed pregnant woman to return to his office later. If the detectives are to be credited, the defendant consulted as to a supposed pregnancy indicated by cessation of menses, furnished a drug to the woman with the statement that the drug would bring on the menses. There is plain indication that the pills were of a well-recognized kind, described by a name, containing no prohibited drug, purchasable at any chemist’s shop without prescription, and used as a mild cathartic. But the gravamen of this provision of the statute is not the character of the drug, or the purpose of him who proffers it, but the representation made. Was the proof sufficient to justify a finding that the defendant held out to the detective that the pills taken in the dose prescribed would restore her menses, after she had represented to him that they had ceased under such conditions as indicated a possible pregnancy? The trial court has determined against the defendant, and I cannot say that the proof did not warrant its conclusion. The court evidently thought that the offense was not flagrant, inasmuch as it imposed the punishment of a fine.

I advise that the judgment be affirmed.

Rich and Putnam, JJ., concurred; Blacemar, J., read for reversal, with whom Stapleton, J., concurred.

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Jenks, P. J.:

The defendant, a physician, was convicted of a violation of section 1142 of the Penal Law. Even with disregard of the defendant’s proof so far as it is contradictory or contrary to the proof of the People, I think that he could not have been convicted of selling or giving away a drug and medicine for causing unlawful abortion or purporting to be for causing unlawful abortion. He gave a prescription and furnished certain pills. The prescription appears to be nothing more than a formula for nausea. Chemical analysis of the pills detected but one substance in a quantity sufficient for identification, namely, an unstated quantity of aloin, which is an active cathartic, a purgative glucosid, made from aloes. (Cent. Diet.; Borland’s Am. Illus. Diet, of Medicine [8th ed.].) There is no proof that the pills in the dose recommended would be an abortifacient for the woman in the condition represented by her. There is no proof that the pills purported to be “ for causing unlawful abortion,” a phrase that means they imported to be for that purpose, as, e. g., by inscription upon the box or bottle that contained them.

But this statute also prohibits holding out representations that the drug or medicine “ can be so used or applied, or any such description as will be calculated to lead another to so use or apply,” etc. The information, which is to be regarded as an indictment, specifies such doings by the defendant, and was, therefore, sufficient to sustain a conviction upon this part of the said statute. (Bork v. People, 91 hi. Y. 5; People v. Corbalis, 86 App. Div. 531.)

The two witnesses for the People were detectives who were decoys. But they were not within the category of private detectives, but were members of the police force assigned to a special squad, and acted presumably in dis[155]*155charge of prescribed official duties. There is no dispute that the defendant, after he had been told by one of them that the other, who posed as her sister, supposed that she was pregnant, made an appointment for the latter at his office. There is no dispute that the two women thereafter came to his office, that one of them represented that the absence of her menses caused her to suppose that she was pregnant, that the defendant thereupon took her into his private office apart from her companion, consulted with her upon her supposed condition and thereafter in the presence of both women wrote the said prescription and furnished the said pills. There is, however, this variance: the two detectives testify that he was asked in effect how long before the menses would be brought on, and he replied, in two or three days, but he insists that this statement was not made, and that his purpose was to secure a relaxation of the bowels preliminary to a proposed examination. Both they and he agree that he told the supposed pregnant woman to return to his office later. If the detectives are to be credited, the defendant consulted as to a supposed pregnancy indicated by cessation of menses, furnished a drug to the woman with the statement that the drug would bring on the menses. There is plain indication that the pills were of a well-recognized kind, described by a name, containing no prohibited drug, purchasable at any chemist’s shop without prescription, and used as a mild cathartic. But the gravamen of this provision of the statute is not the character of the drug, or the purpose of him who proffers it, but the representation made. Was the proof sufficient to justify a finding that the defendant held out to the detective that the pills taken in the dose prescribed would restore her menses, after she had represented to him that they had ceased under such conditions as indicated a possible pregnancy? The trial court has determined against the defendant, and I cannot say that the proof did not warrant its conclusion. The court evidently thought that the offense was not flagrant, inasmuch as it imposed the punishment of a fine.

I advise that the judgment be affirmed.

Rich and Putnam, JJ., concurred; Blacemar, J., read for reversal, with whom Stapleton, J., concurred.

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Bluebook (online)

181 A.D. 153, 36 N.Y. Crim. 176, 168 N.Y.S. 183, 1917 N.Y. App. Div. LEXIS 9083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hager-nyappdiv-1917.

Opinions

I advise that the judgment be affirmed.

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