State v. Longstreth

121 N.W. 1114, 19 N.D. 268, 1909 N.D. LEXIS 78

• Court: North Dakota Supreme Court
• Decided: June 11, 1909
• Status: Published

Opinions

Fisk, J.

Appellant was convicted in the district court of Stutsman county of the crime of procuring an abortion, as defined in section 8912, Rev. Codes 1905, and from an order denying his motion for a new trial he appealed to this court. Pie was assigned 13 alleged errors-, which are.grouped into five subdivisions of his printed brief. These will be considered in the order presented.

1. The court below overruled his demurrer to the information, and the correctness of this ruling is .first challenged; the ground being that such information fails to state the means or manner of the use of the instrument or instruments upon and in the body of the female. The statute defining the offense of which appellant was convicted is as follows: “Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, • drug or substance, or uses or employs any instrument or any means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable,” etc. The charging part of the information is as follows: “That at the said time and place the above-named defendant, W. E. Longstreth, then and there being, did administer to, and prescribe for, one Ida Wagner,'then and there being pregnant with child and did then and there advise and procure said Ida Wagner to take certain medicines, drugs, and substances, the names of said medicine, drugs, and substances being to this informant unknown, and did then and there use and employ in and upon the body of said Ida Wagner certain instruments and other means unknown to this informant all with the intent then and there and thereby to procure the miscariiage of the said Ida Wagner; said miscarriage then and there not being necessary to preserve the life of the said Ida Wagner.”

It will be noticed from a reading of the above statute that the offense consists in the use of any of the means therein mentioned, upon a pregnant woman, with the intent to procure her miscarriage, unless the same is necessary to preserve her life. The offense defined by the statute is complete by the use of such means with the intent aforesaid, regardless of whether the miscarriage is in fact consummated or not. The grounds of the demurrer are: “(1) The said information does not substantially conform to the Code of Criminal Procedure of the state of North Dakota. (2) More than one offense is charged therein. (3) The facts stated in said information do not constitute a public offense.” There are at least two answers to appellant’s contention, each of which are conclusive against him: First, the demurrer is too indefinite to raise the obj ection in question; and, second, even if properly raised, there is no merit in the objection.

The first ground is relied on as sufficient to raise the objection above stated. In this we are clear that counsel are mistaken. Such ground is couched in substantially the language of the statute relating to a demurrer in a criminal action. Rev. Codes 1905, section 9900. This was not sufficient. People v. Hill, 3 Utah, 334, 3 Pac. 75; Flohr v. Territory, 14 Okl., 477, 78 Pac. 565. As said by the court in the Utah case: “It will not do to demur in the language of subdivision 2 of section 19,2 Code Proc., and stop at that. The precise grounds must be pointed out.” The reason for this is obvious. The information may, in many respects, fail substantially to conform to the requirements of the Code of Criminal Procedure, and hence the court is entitled to have such objection specifically pointed out; but, if we assume that the demurrer is sufficiently definite to raise such obj ection, it is entirely clear that the demurrer was properly overruled upon the merits. The authorities are practically unanimous in holding that it is unnecessary to specifically describe the medicine or drug administered to the female by defendant, or which he advised or procured her to take, and that an indictment or information charging the use of an instrument with intent to procure an abortion need not describe the character or kind or instrument used, if it alleges that the same is unknown, and this rule also obtains with reference to alleging the manner of the use of such instruments. In a very recent case in Minnesota, an indictment in almost the identical language of this one was sustained; the court saying: “That it (the indictment) does not sufficiently notify the offender of the nature of the charges to enable him to prepare for trial has no reasonable foundation. That his defense could possibly turn or depend upon the exact instrument or method of operation is not within the realm of possibility.” State v. Bly, 99 Minn., 74, 108 N. W. 833. We deem it unnecessary to cite at length the other authorities bearing upon this phase of the case. Many of them are collated in a valuable note in 11 Am. & Eng. Ann. Cases, p. 221. See, also, Eggart v. State, 40 Fla. 527, 25 South, 144; State v. Quinn, 2 Pennewill (Del.) 339 45 Atl. 544. The cases cited by appellant's counsel arose in states where the strict common law rules governing criminal pleadings are still in force. In this as well as in many other states, the Legislature has expressly abolished such rules. See Rev. Codes 1905 sections 9846-9857, inclusive. We quote from the statute as follows:

“Sec. 9846. All the forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.”

' “Sec. 9856. The information or indictment is sufficient if it can be understood therefrom: * * * (6) That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. (7) That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.”

In this connection, see State v. Holong, 38 Minn., 368, 37 N. W. 587, and State v. Lewis, 13 S. D. 166, 82 N. W. 406. The opinion in the Minnesota case is particularly applicable here. We quote: “That the old form of pleading in criminal actions has been abolished, and the rules by which the sufficiency of such pleadings is to be determined, are those prescribed by the statute. That an indictment is sufficient if it can be understood therefrom that the act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case. That it was the intent of the Legislature to free criminal pleading from the technical rules' (many of-which are senseless) which had grown up on the subject. That, where the criminal character of the act is as strongly stated in the words used in the indictment as those given in the statute, they are the words used in the statute defining the offense, and mean as much in the indictment as in the statute, and in either they descr.ibe the offense.”

The second and third grounds of the demurrer need not be noticed, as they are not discussed in appellant’s brief, and are therefore presumably abandoned.

2. The next assignment of error is predicated upon the ruling of the trial court in denying appellant’s motion to quash the information; the particular point relied on being that Warner, the complaining witness, in fact possessed no personal knowledge of the facts stated in the complaint before the committing magistrate. Hence it is argued that he could not properly make such complaint, and therefore the information filed in the district court could not be based on a preliminary examination held thereunder. Such contention is wholly devoid of merit. It was a most unusual and unheard of practice to permit the defendant, in aid of his motion to quash, to examine this witness for the purpose of showing that he verified such complaint without having personal knowledge of the facts therein positively alleged. If such practice should be tolerated, many guilty persons would go unpunished. No authority for such practice has been cited and we believe none exists. Cases where the complaint alleging facts merely on information and belief, or where such complaint is verified merely on information and belief, are not in point. Here the facts were positively alleged and positively verified. This was sufficient under all the authorities. State v. Collins, 8 Kan. App. 398, 57 Pac. 38; Alderman v. State, 24 Neb. 97, 38 N. W. 36; State v. Stoffel, 48 Kan. 364, 29 Pac. 685; People v. Staples, 91 Cal. 23, 27 Pac. 523; Com. v. Mallini 214 Pa. 50, 63 Atl. 414; State v. Etzel, 2 Kan. App, 673 43 Pac. 798.

Another and complete answer to such contention is the fact that no such ground for quashing the information is mentioned in the Code. Section 9891 Rev. Codes 1905, states the grounds upon which such motion may be made, and this section is exclusive. State v. Tough, 12 N. D. 425, 96 N. W. 425; State v. Foster, 14 N. D. 561, 105 N. W. 938. Furthermore, the record discloses that Warner, the complaining witness, did not act on hearsay evidence, as the defendant prior to the institution of the prosecution made a full admission to him of the facts showing his guilt. The motion was properly overruled.

3. The third ground assigned as a reason why a new trial should be" granted is that the trial court erroneously restricted the cross-examination of the witness Warner. We have carefully examined the record in connection with this assignment, and we are entirely convinced from such examination that the trial court accorded to defendant his full right of cross examination. At least it cannot be said that the trial court abused its discretion in limiting such cross-examination. It is well settled that the latitude and extent of a cross-examination rest largely in the discretion of the trial judge, and it is only in cases of a clear abuse of such discretion, resulting in manifest prejudice to the complaining party, that this court will interfere. State v. Foster, 14 N. D. 561, 105 N. W. 938. Counsel for appellant cites and relies upon several prior decisions of this court in support of his contention on this point, and especially the case of State v. Malmberg, 14 N. D. 523, 105 N. W 614; but we fail to find anything therein to warrant such contention under the state of the record in the case at bar, and we leave this branch of the case without further comment.

4. It is next contended that it was reversible error to permit the witness Olsen, who was the official court stenographer, to read from his stenographic minutes certain testimony given by defendant in a breach of promise suit theretofore tried in said court, wherein Ida Wagner was plaintiff and appellant was defendant. We fail to discover any prejudical error in the admission of such testimony. The record discloses that Olsen was first sworn as a witness, and testified that he took and correctly transcribed defendant’s testimony on such prior trial, and he was asked and permitted to state the exact testimony of appellant upon such trial, and to do so it was necessary to refresh his memory by referring to such testimony as transcribed by him. This was eminently proper and it is apparent that in no other manner would it be possible for him to narrate such testimony exactly as given on the former trial. This testimony was clearly competent and very relevant and material, as it tended to prove a prior admission by defendant of the facts thus testified to by him. Proof of such admissions was undoubtedly proper. Macomber v. Bigelow, 126 Cal. 9, 58 Pac. 312; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; People v. Butler et al., 111 Mich. 483, 69 N. W. 734; State v. Hopkins, 13 Wash. 5, 42 Pac. 627; Com. v. Reynolds, 122 ; State v. Carroll, 85 Iowa, 1, 51 N. W. 1159; People v. Gallagher 75 Mich. 512, 42 N. W. 1063; 1 Bishop’s New Crim, Pro., section 1255; 3 Enc. Evidence (Camp) page 340, and cases cited; 1 Enc. Evidence 482, 483, 484, 485; 2 Wigmore on Evidence, sections 1048-1051; 1 Elliott on Evidence sections 238, 239 and cases cited. Counsel for appellant cites and relies upon the cases of State v. Foulk, 57 Kan. 255, 45 Pac. 603, Cerrusite Min. Co. v. Steele, 18 Colo., App. 216, 70 Pac. 1091, Smith v. State, 42 Neb. 356, 60 N. W. 585, and Jordan v. Howe, 4 Neb (Unoff) 667 N. W. 853 in support of his contention that such testimony was inadmissible; but, clearly, none of these cases are in point. They either involve rulings permitting similar proof of the former testimony of mere witnesses, not parties to the action, or were cases in which a certified transcript of the reporter’s notes was offered in evidence as independent proof. Of course, this would be prejudicial error. The distinction between these cases and the case at bar is at once manifest.

5. But one other point requires consideration. It is contended that the evidence is insufficient to support the verdict, because, as alleged, the state failed to prove that the abortion was not necessary to preserve the life of this woman. This is the sole attack upon the verdict in so far as the sufficiency of the evidence is concerned. By the great weight of authority the state must both allege and prove such negative; but the decisions of the various courts which have had occasion to pass on the question are in irreconcilable conflict as to whether, in the absence of testimony to the contrary, the state is required to affirmatively establish such negative by- direct proof, 1 Enc. of Evidence, page 56, and cases cited; 4 Elliott on Evidence, section 2771; Bishop on Statutory Crime (3d Ed.) section 762 and cases cited. Mr. Bishop, in speaking on the subject, says: “Under a statute which makes it an element of the offense that the abortion was not necessary, some courts hold that, though this want of necessity must be averred in the indictment, it,need not be proved; but the burden is on the defendant to show a necessity. This is a sort of question on which judicial opinions differ.” In the following .cases it was held that the presumption obtains that it was not necessary that the abortion should be procured in order to preserve the life of the female, and that such presumption, in the absence of proof rebutting the same, aids the state in its proof by making out a prima facie case; State v. Lee, 69 Conn., 186, 37 Atl. 75; State v. Schuerman, 70 Mo. App. 518; 1 Cyc. p. 188. See, also, Hatchard v. State, 79 Wis., 357, 48 N. W. 380. The following cases are to the contrary: State v. Clements, 15 Or. 237, 14 Pac. 410; State v. Aiken, 109 Iowa, 643, 80 N. W. 1073.

Under the record in this case we'are not required to adopt either rule, as a consideration of the testimony serves to convince us that, without the aid of such presumption, the state has sufficiently established at least a prima facie case on this issue. The evidence establishes beyond any reasonable doubt the following facts: At the time the abortion was committed on 'her, Ida Wagner was a single person only 22 years of age, and was a strong, healthy, working girl. Prior thereto she had never had any ailments’. For about ten months prior thereto defendant had kept company with and had promised to marry her. They repeatedly, since June, 1905, had sexual intercourse together, which resulted in her pregnancy, and defendant, who was a physician, administered, to her drugs and medicines for the purpose of procuring her miscarriage, and on-two separate occasions used an instrument in and upon her by inserting the same into her womb with the like object and intent. She testified that he never informed her until after the abortion had taken place what his purpose was in administering medicine and in performing the operations, and he never told her that an abortion was necessary to preserve her life; nor is ■ there a scintilla of evidence tending to show such to be a fact. After the abortive agencies had taken effect, he left her alone in her room unattended, in a semiconscious condition, apparently attempting to keep such abortion a secret, and leaving this woman to take care of herself as best she could. When she thereafter found in her bed, in a bloody condition, portions of a partially matured child, he first explained to her the full import of the transaction. Defendant admitted to the witness Warner that he had had sexual intercourse with this woman, and that she was pregnant as a result thereof, and also that he had promised to marry her, but could not do so, giving as a reason that he did not love her. These facts, as well as all the other testimony and circumstances, furnish an adequate motive for his criminal conduct, and, to the extent that they furnish such motive, they also tend to disprove the necessity for procuring such abortion in order to preserve the woman’s life. The circumstances all point to the conclusion that what defendant did was not so much to save the girl’s life, but rather to shield himself from the resulting obligations consequent. upon his illicit relations with her. That circumstantial evidence is competent to prove the absence of a necessity for the abortion in order to preserve the woman’s life is amply supported by authority. 1 Cyc. p. 190, citing Howard v. People, 185 Ill. 552, 57 N. E. 441; State v. Aiken, 109 Iowa, 643, 80 N. W. 1073; Bradford v. People, 20 Hun. (N. Y.) 309.

We believe no reported case can be found holding that, under similar facts to those in the case at bar, the state has not established at least a prima facie case on this issue. It will be found that in most, if not all, the cases holding that the presumption that it was not necessary to abort the woman in order to save her life is not sufficient to establish a prima facie case on such negative issue in favor of the state, that there was no such strong circumstantial evidence tending to prove such negative as the record in this case discloses, but such presumption was relied on practically alone to establish such negative fact. This is especially true of the case of State v. Aiken, 109 Iowa, 643, 80 N. W. 1073, in which, among other things, the court said: “All that is disclosed by the evidence on this point is that the woman on whom the operation was performed went with her mother to- the office of the defendant, who is a doctor, and requested her to perform an abortion. The woman was advanced in pregnancy from five to six months, and the operation was successfully performed. There is no evidence of illicit intercourse, no showing as to whether she was married or unmarried, and nothing to indicate the condition of her health, except that she walked to the office of defendant two or three times. Surely this does not prove beyond á reasonable doubt that the miscarriage was necessary to save the life of the mother. And we are of the opinion that it does not make out even a prima facie case.”

It can be said of the testimony in the case at bar, as was said by the Wisconsin court in Hatchard v. State, supra: “The irresistible inference from the testimony is that it was not necessary to destroy the child to preserve the life of the mother.” . .

Finding no prejudicial error in the record, the order appealed from is affirmed.

Morgan, C. J., not participating. Spalding and Carmody, JJ., concur.