State v. Evans

66 S.E.2d 545, 136 W. Va. 1, 1951 W. Va. LEXIS 2

• Court: West Virginia Supreme Court
• Decided: May 29, 1951
• Docket: No. 10347
• Status: Published

Opinions

Lovnsrs, Judge:

F. E. Evans, a practicing physician and surgeon, was indicted in the Intermediate Court of Kanawha County, West Virginia, and was tried, convicted, and sentenced in that court of the crime of procuring an abortion on the body of an unmarried female, hereinafter referred to as “prosecutrix”. He prosecutes a writ of error to this Court.

On or about the first day of January, 1949, the prosecu-trix, a student in a Kanawha County high school, between seventeen and eighteen years of age, conceived a child. Realizing her condition on or about March 23, 1949, she interviewed the defendant for the purpose of procuring an abortion. The defendant did not indicate his willingness to perform the abortion, but gave the prosecutrix a card with the name of a woman written thereon and told her to go and see that person. The prosecutrix made an arrangement by telephone to meet the woman the following morning at nine o’clock. Pursuant to this arrangement, she went to see the person, hereinafter designated as “woman”, and told her that she wanted an abortion performed upon herself, and arranged with the woman to meet her at the defendant’s office on the following morning at nine o’clock.

The prosecutrix went to the office with her cousin at the appointed hour, waited for a time, then started to leave the office¡; but on leaving she met the woman whom she had theretofore interviewed and returned to the office of defendant. After a short wait the prosecutrix went into the consultation room of the defendant with the woman. The prosecutrix paid the woman the sum of $75.00. The prosecutrix was placed on an examining table, her eyes were covered, and her face was wiped with a cold towel. She testified that she felt a sharp pain in her abdomen. She remained in defendant’s consultation room for about ten minutes, left defendant’s office accompanied by the woman and her cousin, started down the stairs to the street level and fainted. She was then taken back to defendant’s office, the automobile in which she was traveling was brought to the street entrance to defendant’s office, and the prosecutrix, her cousin, and the woman got in the automobile and went to the woman’s home. During that time the woman told her to take a laxative.

The alleged abortion was performed on Wednesday. On the following Friday morning the prosecutrix emitted a small amount of blood from her genital organs, and, on the following Saturday, she went to the office of defendant.

On occasion of her third visit to defendant’s office, during her stay of fifteen minutes, she told him about the emission of blood. Defendant advised her that she was “all right”. On the Tuesday following she returned to school where she was a student. During the rest of the school term she engaged in her usual activities and graduated in June, 1949.

After her graduation the prosecutrix went to work as a waitress in a restaurant in Charleston, West Virginia. While working as a waitress she went to another doctor, ostensibly to be examined for. the procurement of insurance, and this physician disclosed to her that she was pregnant.

Prosecutrix testified that about two weeks before the birth of her child she emitted water and blood from her genital organs. On or about the 30th day of June, 1949,. she was sent to the Salvation Army Hospital in Charleston where she was delivered of a baby which had been conceived on or about January 1, 1949, as hereinabove stated. The baby lived about fifteen minutes.

The prosecutrix is partially corroborated in the details of her actions by her cousin, her aunt, and other witnesses. The woman who was an eye witness to the treatment of the prosecutrix by defendant, being a practical mirse, testified that defendant used a vaginal speculum. The prosecutrix did not know what was used since her eyes were covered.

When the child was born a considerable portion of the skin on the cranium had been detached from the bone, was necrotic, and had the appearance of having been detached from the cranium as a result of violence. There were also large bruises on the child’s legs. Medical testimony on behalf of the state indicates that the child could have been injured on or about the 23rd of March and remained in the mother’s womb until its delivery approximately three and one-half months later, one of the physicians who testified having seen the child after its death. No autopsy or pathological examination of the child’s body was had. Another physician testified on behalf of the defendant that in his opinion the injury to the scalp, hip and leg of the child could not have been inflicted in March and the child carried in its mother’s womb until its delivery on the 30th day of June. The prosecutrix testified that she had done no act to cause an abortion between the time when defendant treated her in March and •the date of delivery of the child.

The state' was permitted to introduce the testimony of five witnesses, by four of whom it was shown that the defendant had performed abortions on them. The alleged abortion on one of these witnesses occurred about June 18, 1949, approximately three months after the treatment of the prosecutrix. The other three alleged abortions were committed prior to the treatment of the prosecutrix. 'The testimony of the witnesses with regard to the four alleged abortions was admitted by the trial court upon the theory that it was to show the motive, design and intent of the defendant.

Upon the testimony above stated, the jury returned a verdict of guilty as charged in the indictment and the 'trial court sentenced defendant to an indeterminate sentence in the penitentiary of this state for a period of three to ten years. A writ of error was denied'defendant upon •application to the circuit court of Kanawha County, and "thereafter this court, upon petition of defendant, granted •a writ of error.

The defendant denies that he performed any abortion -on the prosecutrix, but does admit treating her, saying that he applied a packing to her vagina. He also denies ■committing abortions on the four witnesses who were ■introduced to show motive, design and intent. There is considerable conflict in the testimony as to what he was paid for the abortions. Defendant admits that he was paid small sums from one to five dollars. Witnesses testified that he was paid sums ranging from fifteen to seventy-five dollars. Other testimony was introduced by defendant to show that he treated indigent persons free of ■charge.

Defendant assigns many errors, which we summarize: (a) The coúrt erred in admitting evidence offered by the state, and (b) In overruling the motion to set aside the verdict and grant a new trial on the ground that the verdict is contrary to law and evidence.

The various objections to specific items of evidence will be stated and discussed together. The defendant takes "the position that the hypothetical questions propounded to the physicans permitted them to testify as to a possibility rather than a probability, and draws a distinction between what the action of the defendant could cause and what such action would cause. The record shows that the hypothetical questions were propounded so that the-witness could frame his answer on what could be the result of the action of 'the defendant. Authorities are cited to sustain the position taken by the defendant, among which are: 3 Jones Commentaries on Evidence, Second Edition, page 2458; 20 Am. Jur., Evidence, Secs. 787, 788; 32 C.J.S., Evidence, Sec. 551 (b); Duvall v. Brooklyn Cooperage Company (Mo. App.), 275 S.W. 586; Rogers on Expert Testimony, Third Edition, Sec. 137; Kime v. Owens (Iowa), 182 N.W. 398. In the case of Graves v. Katzen, 112 W.Va. 467, 164 S.E. 796, this Court held that a properly qualified medical expert could testify “as to the probable future consequences of an injury, provided the consequences anticipated are such as in the ordinary course' of events may reasonably be expected to happen, and are' not merely speculative or possible.” Testimony by an. expert witness is not objectionable for the reason that it. relates to whether a given effect might result from a certain cause. Such testimony is not speculative “but is a. common and proper mode of examination.” Foose v. Hawley Corp., 120 W.Va. 334, 198 S.E. 138. See Rogers on Expert Testimony, Third Edition, Sec. 49; Carroll v. Missouri Power & Light Co. (Mo. App.), 96 S.W. 2d 1074; Castanie v. United Rys. Co. (Mo.), 155 S.W. 38; Industrial Commission of Ohio v. Holman (Ohio App.), 179 N.E. 192; Jackson v. Harries (Utah), 236 Pac. 234; Galveston, H. & S. A. Ry. Co. v. Harris (Texas Civ. App.), 172 S.W. 1129; El Paso Electric Ry. Co. v. Jennings (Texas Civ. App.), 224 S.W. 1113; Standard Oil Co. v. Stern (Md. App.), 173 A. 205; Montevallo Mining Co. v. Little (Ala.), 93 So. 873.

We think this Court, in Foose v. Hawley Corp., supra, committed itself to the principle that hypothetical questions may be framed so as to elicit an answer whether the' result could have been caused by a given event or series of events. In view of a discretionary power of a trial court, we think this is a sound rule. There may be some support for the position of the defendant from the authorities hereinabove mentioned, but we are not disposed

to follow those authorities. We therefore hold that there was no error in the framing of the hypothetical questions in this case.

Defendant objects to the hypothetical question on the ground that it was predicated on the vital fact of the insertion of an instrument into the. uterus of prosecutrix, and that such insertion was not established by proof and was not stated in the question to the physician. A hypothetical question should be grounded on facts admitted or proved. Bowen v. Huntington, 35 W.Va. 682, 14 S.E. 217; State v. Taylor, 105 W.Va. 298, 306, 142 S.E. 254; Cline v. Evans and Tallman, 127 W.Va. 113, 120, 31 S.E. 2d 681; State V. Painter, 135 W. Va. 106, 63 S.E. 2d 86.

We have carefully examined the record herein and there is no evidence tending to show the insertion of any instrument in the uterus of the prosecutrix, but we do' have testimony of the prosecutrix to the effect that when she was being treated by the defendant she felt a sharp-pain in her abdomen, and we have the surrounding circumstances that she fainted on leaving the defendant’s office, thát shortly thereafter she passed blood, and that the woman who was with the prosecutrix in defendant’s consultation room testified that defendant inserted a vaginal speculum into the vagina of the prosecutrix, all tending to indicate the use of an instrument. The woman who accompanied prosecutrix to defendant’s office first disclaimed any knowledge as to whether any instrument was placed in the genital organs of the prosecutrix. Thereafter, on cross examination, she testified that a vaginal speculum was inserted. We are not prepared to say that that is correct. It is a reasonable assumption that some kind of treatment, either medical or surgical was given the prosecutrix which caused a disturbance of her genital organs. This assumption is supported when we consider the following question and answer adduced during the examination of the woman who was present when the prosecutrix was treated: “Q. Tell this jury whether an abortion was committed on * * * [prosecutrix] at that time. A. Naturally that is what the girl was there for. I am not in position to say just what brought that about.” We do not think that it was vital to the state’s case to prove, by direct testimony, that defendant inserted some kind of instrument into the uterus of the prosecutrix. “In propounding hypothetical questions to expert witnesses, counsel may without error, assume facts fairly in-ferable from the evidence, in accordance with their theory of them.” State v. Cook, 69 W.Va. 717, 728, 72 S.E. 1025.

The next error assigned relates -to the admission of the testimony of the five witnesses relative to the defendant having committed illegal abortions on four of such witnesses. The first of the alleged illegal abortions occurred in the year 1946 or 1947. Another occurred in the month of June, 1948. Another occurred in the month of March, 1949. The alleged illegal abortion here considered occurred about the middle of March, 1949. Another witness was permitted to testify that the defendant performed an illegal abortion on her in the month of June, 1949. It will thus be seen that evidence was admitted showing similar illegal acts allegedly committed by the defendant both prior and subsequent to the alleged illegal abortion here considered. The question of the admissibility of this testimony therefore falls into two categories: (a) Are criminal acts similar to the one under inquiry, done prior thereto, admissible to show motive, design and intent? (b) Are such acts performed subsequent to the one under inquiry admissible for the same purpose?

It is a general rule that distinct criminal acts other than the one charged, for which the accused is being tried, are inadmissible, but there is a well defined exception to that general rule which is recognized and applied in this and many other jurisdictions.

The principle here applicable that criminal actions distinct from the one charged may show intent, motive and design to commit the crime for which the defendant is being tried constitutes the exception.

Code, 61-2-8, provides in part: “Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage,, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony * * * No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.” It is thus seen that intent is an integral part of the crime of abortion. Though the defendant in the instant case denies doing any act or applying any treatment for the purpose of causing an abortion on the prosecutrix, we think such denial put in issue the intention of the defendant, when he treated the prosecutrix’ genital organs, as. he testified he did.

This exception has been treated in various ways by courts in other jurisdictions. See II Wigmore on Evidence, Third Edition, Secs. 304, 359; 1 Am. Jur., Abortion, Sec. 42. In the case of State v. Cragun (Utah), 38 Pac. 2d 1071, various authorities are cited and compared. The Supreme Court of Utah held that the evidence of other and similar acts was not admitted to show intent or motive, but in that case was admitted to establish defendant’s guilt. In People v. Lonsdale (Mich.) 81 N.W. 277, the court adopted the principle that proof of other offenses of a similar character was inadmissible to show motive or intent where the existence of such motive or intent was a necessary conclusion from the act done. In People v. Hodge (Mich.), 104 N.W. 599, the court distinguished that case from People v. Lonsdale, supra, and held the admission of evidence of other acts was not erroneous, the defendant in People v. Hodge, supra, having defended the charge on the ground that the act was done for legitimate purposes. Evidence of other and similar acts has been held admissible to rebut evidence that the criminal abortion was innocently performed. People v. Hickok (Cal. App.), 204 Pac. 555. In Clark v. Commonwealth (Ky.), 63 S.W. 740, it was held that evidence of other abortions should be admitted h> show intent or motive if the defendant admitted the performance of an abortion and attempted to justify it on the grounds of necessity. See State v. Choate (N.C.), 46 S.E. 2d 476; State v. Brown (N.C.), 162 S.E. 216; State v. Smith (Wash.), 174 Pac. 9; Cline v. State (Ohio), 174 N.E. 767.

This Court has adopted a different approach. In the case of State v. Lewis, 133 W. Va. 584, 57 S.E. 2d 513, in which the defendant was charged with murder on account of a criminal abortion, this Court held that in a criminal case “Proof of another offense chargeable to the defendant is admissible to show motive or intent, when such other offense is similar and near in point of time to, has some logical connection wi'th, and tends to establish the commission of, the specific offense charged against the defendant, and indicates that such specific offense is part of a system of criminal action.” See State v. Johnson, 105 W.Va. 598, 143 S.E. 352; State v. Rush, 108 W.Va. 254, 150 S.E. 740; State v. Camp, 110 W.Va. 444, 158 S.E. 664; State v. Leatherwood, 112 W.Va. 339, 164 S.E. 295; People v. Hobbs (Ill.), 130 N.E. 779; Clark v. People, 224 Ill. 554, 79 N.E. 941; People v. Mitchell (Ill.), 14 N.E. 2d 216; State v. Steadman (S.C.), 59 S.E. 2d 168. Evidence of similar acts has been held admissible though the defendant denied that any illegal operation had been performed. State v. Rowley (Iowa), 195 N.W. 881; Smith v. State (Oklahoma), 175 Pac. 2d 348.

It is urged that although prior acts may be admissible, similar acts performed by the defendant after the alleged abortion committed on prosecutrix were not admissible. This Court has spoken on that subject in a trial involving the operation of a moonshine still. In State v. Adkins, 109 W.Va. 579, 581, 155 S.E. 669, it was held that where proof of a subsequent act has some logical connection with and tends to establish the specific crime charged, it is admissible. In the case of State v. Geene, 122 W. Va. 51, 7 S.E. 2d 90, the only point of the syllabus reads as follows: “On the trial of an indictment for a specific offense, evidence may be admitted of other similar acts so intimately connected with the alleged crime under investigation as to indicate on the part of the defendant a general design or system, inclusive of the crime charged. Such evidence may be in respect of subsequent acts as well as contemporaneous or prior ones.” See State v. Beacraft, 126 W.Va. 895, 901, 30 S.E. 2d 541; State v. Sturchio, (N.J.L.), 32 A. 2d 577, 578; 1 Wharton’s Criminal Evidence, Tenth Edition, Sec. 39; Underhill’s Criminal Evidence, Fourth Edition, Sec. 187.

In the case of People v. Hobbs, supra, evidence of criminal abortion subsequent to the one for which defendant was being tried was rejected on the ground that criminal abortions prior to that committed on the prosecutrix in that case had not been shown. In rejecting this testimony, the Court used the following language: “If there had been proof of former criminal abortions by the defendant, we would unhesitatingly hold that proof of the subsequent offense is also admissible to establish such criminal intent, but without proof of former offenses the proof of a subsequent abortion has no tendency whatever to prove that the defendant was engaged or intended to engage in such unlawful business * *

In the instant case, the similarity of acts, established by testimony of five witnesses, is clear, as well as the similarity of the treatment given to four of those witnesses and the prosecutrix. In the case at bar the trial court carefully cautioned the jury that the evidence of similar and other acts was not admitted for the purpose of establishing the guilt of the accused, but for the purpose of showing design, motive and intent to commit an abortiop. upon the prosecutrix.

We are impelled to remark that evidence of other acts, though similar and closely connected in point of time to the one for which accused is being tried, unless carefully limited, may. constitute an attack upon the character of 'the defendant and generate in the minds of a jury the idea that a defendant, being guilty of other similar acts, though the evidence is not sufficient to establish the criminal act for which he is being tried, they are justified in returning a verdict of guilty. But we think that in a case of abortion, where the line between criminality and legitimate professional practice is hazy and indefinite, intent may be determinative of innocence or guilt. Similar acts, performed on other persons, resulting in criminal abortions, show intent, when closely connected in point of time.' The interests of defendant with reference to such testimony were fully protected by the instructions of the court, and the evidence of other and similar alleged abortions was properly restricted. We see no error in that assignment.

Defendant contends that the trial court admitted testimony of a nurse and a member of the Department of Public Safety relating to medical matters, although such witnesses were not shown to be experts. The evidence of such persons, who expressed opinions to the effect that the injuries to the baby had been inflicted some time before its delivery instead of recently, clearly presented a basis for an inference. Although it may be that such testimony lacked weight on account of lack of qualifications of the witnesses as experts, the jury was entitled to give it such weight as they saw fit. See Kunst v. City of Grafton, 67 W.Va. 20, 67 S.E. 74; State v. Welch, 36 W.Va. 690, 15 S. E. 419.

Complaint is made by the defendant that the court erred in admitting hearsay testimony by one of the witnesses who testified to an alleged abortion committed subsequent to that here considered. The testimony of such witness was admitted for a legitimate purpose, although the witness’s testimony, in part, was hearsay as to an immaterial occurrence. The material part of her testimony, tending to establish the intent of the defendant, was not hearsay. We fail to see any prejudice in its admission.

A member of the Department of Public Safety testified that he had seen a female come out of the office of defendant,' and that she was followed to her home where she was so sick that members of the Department of Public Safety had to go to her room to obtain a statement. This testimony should not have been admitted, but we do not see prejudice therein sufficient to set aside the verdict. State v. Taylor, 130 W.Va. 74, 42 S.E. 2d 549.

The assignment of error relative to overruling a motion to set aside the verdict as contrary to the law and evidence is without merit. As hereinbefore stated, the prose-cutrix went to the defendant for the express purpose of having an illegal abortion committed on her. The woman who went with her to the office of defendant seems to have been a participant in such illegal act, and knew the purpose of the treatment given prosecutrix. The defendant urges that the testimony shows that no instrument was inserted into the womb of the prosecutrix. That- may be true, but testimony shows that defendant inserted a packing in her vagina; that the prosecutrix felt a sharp pain in her abdomen; and that the prosecutrix emitted blood from her genital organs shortly after the treatment, and approximately three and one-half months thereafter suffered a miscarriage. The medical testimony indicates that although it was unusual for the prosecutrix to suffer a miscarriage three and one-half months after the illegal operation, it was possible. A consideration of all the evidence leads to the conclusion that the defendant performed some kind of an act on the genital organs of the prosecutrix so as to cause an abortion on the 30th day of June, 1949. The record shows that that abortion was not necessary to preserve the life of the prosecutrix since she was apparently in good health when she went to defendant, and, even after the illegal acts of defendant, she seemed to have been normal until she was examined by the physician for the ostensible purpose of obtaining insurance. Nevertheless, shortly after that examination, she was delivered of a premature baby which had old wounds on his cranium and bruises on his hip and limb. Without resorting to conjecture or surmise in any way, we cannot avoid drawing the inference beyond all reasonable doubt that the premature birth and death of the prosecutrix’ baby was caused by the action of the defendant, and that the jury verdict is supported by the evidence and authorized by law. Therefore, the judgments of the Intermediate and Circuit Courts of Kanawha County are affirmed.

Affirmed.