State v. Willson
This text of 233 P. 259 (State v. Willson) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
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REVERSED. There is an Oregon statute reading thus:
"If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." Or. L., § 1900.
The grand jury of Union County returned an indictment against the defendant on February 5, 1924, the charging part of which reads as follows:
"The said E.O. Wilson on the 2d day of November, 1923, in the county of Union and State of Oregon, then and there being, did then and there unlawfully and feloniously use a certain metallic instrument, by then and there inserting said instrument in the vagina and uterus of one Hazel Barnes, said Hazel Barnes then and there being pregnant with a child, with the intent then and there thereby to destroy such child, said use of said instrument not being necessary to preserve the life of said Hazel *Page 453 Barnes, and said defendant did then and there unlawfully and feloniously thereby produce the death of the said child, contrary to the statutes," etc.
A trial of the defendant on a plea of not guilty resulted in his conviction and he appealed.
It will be observed that there are two classes of acts by which the crime defined by the statute may be committed. They are the administration of any medicine, drug or substance, and the use or employment of any instrument or other means. It is required by Section 1437, Or. L., that the indictment must contain:
"A statement of the acts constituting the offense in ordinary and concise language, without repetition in such manner as to enable a person of common understanding to know what is intended."
It appears in evidence, in substance, that the woman named in the indictment went to work for the defendant in his dental office in June, 1922, and continued there until August 17, 1923. She testified that after that date, there was no coitus between her and anyone until November 9, 1923, and none afterwards. Meanwhile, she had been regular in her menses and suspected nothing until November 18th when her catamenia were due but did not appear. The prosecution relies upon November 9th as the date of the intercourse resulting in the pregnancy charged in the indictment. The whole history of the charge in the indictment is included between November 9, 1923, and December 18th of that year, at which last date she claims she had a miscarriage.
One class of objections to the procedure of the court is that the prosecutrix was allowed to testify, over the objection and exception of defendant, that she became pregnant by him, and that he performed *Page 454
two separate and distinct operations upon her resulting in the death of the foetus with which she was at the time pregnant, prior to the one named in the indictment. This is contrary to the rule laid down in this state in the following decisions: State
v. O'Donnell,
Another objection to the procedure was that in the face of the allegations of the indictment confining the act to the use of "a certain metallic instrument," the state was allowed to produce testimony to the effect that certain drugs and medicines introduced and admitted in evidence were given by the defendant to the prosecuting witness on former occasions for the purpose of producing an abortion and the destruction of the foetus of which she was pregnant in those instances. Likewise, she was permitted to testify that he furnished her the money to buy turpentine which he administered to her to bring about the abortion of the foetus named in the indictment. If the state would prove such conduct it should allege it in the indictment, for it is one of the acts constituting the offense. The state had no right merely to allege the use of an instrument and then add to that proof of the administration or use of a drug with intent to destroy the child.
The defendant also complains of the refusal of the court to give to the jury the following instruction:
"I instruct you, Gentlemen of the Jury, that the fact that Hazel Barnes consented to the alleged abortion and the fact of her complicity may be considered by you as affecting her credibility as a witness, and the force and weight of her testimony."
The instruction is subject to criticism, in that it alludes to "the fact of her complicity." The weight of authority is to the effect that the female in such instances is not an accomplice, but as stated in Seifert v. State,
"The deceased was not strictly an accomplice, but the moral quality of the act and her connection with *Page 456 it were such as to entitle the appellant to have said instruction given to the jury."
According to the statement of the case in that precedent:
"At the proper time appellant tendered an instruction to the effect that, in determining what weight should be given to the dying declarations, the jury might consider the fact that according to her own admission therein the declarant had used the catheter upon her person to produce an abortion. The court refused so to instruct, and appellant reserved an exception."
The testimony for the state is to the effect that the woman named in the present indictment, accompanied by her sister, went to the defendant, complained that she was pregnant, and sought his assistance to produce an abortion, and so destroy the foetus of which she was then pregnant.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 452 IN BANC.
REVERSED. There is an Oregon statute reading thus:
"If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." Or. L., § 1900.
The grand jury of Union County returned an indictment against the defendant on February 5, 1924, the charging part of which reads as follows:
"The said E.O. Wilson on the 2d day of November, 1923, in the county of Union and State of Oregon, then and there being, did then and there unlawfully and feloniously use a certain metallic instrument, by then and there inserting said instrument in the vagina and uterus of one Hazel Barnes, said Hazel Barnes then and there being pregnant with a child, with the intent then and there thereby to destroy such child, said use of said instrument not being necessary to preserve the life of said Hazel *Page 453 Barnes, and said defendant did then and there unlawfully and feloniously thereby produce the death of the said child, contrary to the statutes," etc.
A trial of the defendant on a plea of not guilty resulted in his conviction and he appealed.
It will be observed that there are two classes of acts by which the crime defined by the statute may be committed. They are the administration of any medicine, drug or substance, and the use or employment of any instrument or other means. It is required by Section 1437, Or. L., that the indictment must contain:
"A statement of the acts constituting the offense in ordinary and concise language, without repetition in such manner as to enable a person of common understanding to know what is intended."
It appears in evidence, in substance, that the woman named in the indictment went to work for the defendant in his dental office in June, 1922, and continued there until August 17, 1923. She testified that after that date, there was no coitus between her and anyone until November 9, 1923, and none afterwards. Meanwhile, she had been regular in her menses and suspected nothing until November 18th when her catamenia were due but did not appear. The prosecution relies upon November 9th as the date of the intercourse resulting in the pregnancy charged in the indictment. The whole history of the charge in the indictment is included between November 9, 1923, and December 18th of that year, at which last date she claims she had a miscarriage.
One class of objections to the procedure of the court is that the prosecutrix was allowed to testify, over the objection and exception of defendant, that she became pregnant by him, and that he performed *Page 454
two separate and distinct operations upon her resulting in the death of the foetus with which she was at the time pregnant, prior to the one named in the indictment. This is contrary to the rule laid down in this state in the following decisions: State
v. O'Donnell,
Another objection to the procedure was that in the face of the allegations of the indictment confining the act to the use of "a certain metallic instrument," the state was allowed to produce testimony to the effect that certain drugs and medicines introduced and admitted in evidence were given by the defendant to the prosecuting witness on former occasions for the purpose of producing an abortion and the destruction of the foetus of which she was pregnant in those instances. Likewise, she was permitted to testify that he furnished her the money to buy turpentine which he administered to her to bring about the abortion of the foetus named in the indictment. If the state would prove such conduct it should allege it in the indictment, for it is one of the acts constituting the offense. The state had no right merely to allege the use of an instrument and then add to that proof of the administration or use of a drug with intent to destroy the child.
The defendant also complains of the refusal of the court to give to the jury the following instruction:
"I instruct you, Gentlemen of the Jury, that the fact that Hazel Barnes consented to the alleged abortion and the fact of her complicity may be considered by you as affecting her credibility as a witness, and the force and weight of her testimony."
The instruction is subject to criticism, in that it alludes to "the fact of her complicity." The weight of authority is to the effect that the female in such instances is not an accomplice, but as stated in Seifert v. State,
"The deceased was not strictly an accomplice, but the moral quality of the act and her connection with *Page 456 it were such as to entitle the appellant to have said instruction given to the jury."
According to the statement of the case in that precedent:
"At the proper time appellant tendered an instruction to the effect that, in determining what weight should be given to the dying declarations, the jury might consider the fact that according to her own admission therein the declarant had used the catheter upon her person to produce an abortion. The court refused so to instruct, and appellant reserved an exception."
The testimony for the state is to the effect that the woman named in the present indictment, accompanied by her sister, went to the defendant, complained that she was pregnant, and sought his assistance to produce an abortion, and so destroy the foetus of which she was then pregnant. There were two of these interviews at each of which, according to her statement, the prosecutrix, her sister and the defendant were present, viz.: on November 20th and 22d. Her motive of shame and dread of the disgrace attendant upon the discovery of her condition would naturally operate strongly on her mind to aid in bringing about the result she desired. She was deeply interested in the question, much more than any other witness, and hence in fairness to the defendant, some such cautionary instruction ought to have been given.
In the instant case no qualified witness had ever seen what could be called a foetus, and no one has said anywhere in the testimony that the child of which the woman was alleged to be pregnant is dead. The prosecutrix relies upon sexual intercourse with the defendant November 9, 1923. She declared that she had frequent desire to urinate and had "morning *Page 457 sickness." These manifestations are classed as doubtful signs of pregnancy by some authors: 2 Witthaus Becker, Med. Jur. 554; Draper Legal Med. 173. She testifies that the defendant administered to her turpentine on the twentieth of the same month; and that two days later, on November 22, 1923, he introduced a metallic instrument into her uterus. The testimony of her sister is to the effect that afterwards, on December 18, 1923, there passed from the prosecutrix with a clot of blood a piece of what "really looked almost like flesh" about the size of an adult woman's finger and about one and one half to two inches long. This was not exhibited to her attending physician whom she consulted on November 28th and December 18th and who testifies he saw no foetus. No one pretends to say that it was a foetus or that it was alive or dead. The record is silent as to any indication of development of the different members of the human body on the thing so discharged, though according to respectable authorities a foetus of the size described begins to show traces of eyes, nose, mouth, ears, hands and feet, as well as other characteristics of the human body which would readily distinguish it from a vaginal polypus not due to pregnancy: 1 Peterson, Haines Webster, Leg. Med. Tox. (2 ed.), 959; 2 Hamilton, System of Legal Medicine, 477. There is before us no history of pigmentation of the breasts or vulva nor softening of the uterus classed among the probable signs of pregnancy: 2 Witthaus Becker Med. Jur. 557. It may well be doubted whether the testimony was sufficient in that respect, but for the errors already noted, the judgment is reversed and the cause remanded for new trial.
REVERSED AND REMANDED.
BROWN, J., concurs in the result. *Page 458
BURNETT, Judge.
This is a case charging manslaughter. The appellant was convicted of manslaughter by violating Section 1900, Or. L., in that he was said to have used a metallic instrument on the womb of a pregnant woman with intent to destroy the child of which she was pregnant, the same not being necessary to preserve the life of the mother. On appeal, the conviction was reversed and the cause remanded for further proceedings. Of this the state complains, and petitions for a rehearing, urging principally that the opinion was wrong in holding that the Circuit Court erred in admitting evidence of other similar crimes. Based upon five pages of citations of precedents the prosecution assays to show that practically in all cases, the fact that a defendant has at some time committed a crime of the same nature, may be shown in support of the charge on trial. The petition for rehearing seems to proceed on the supposition that a defendant once guilty is always guilty, not only of other crimes that may *Page 459 be laid to his charge, without notice to him, but also, per consequence, of the offense for which he is being tried. However natural to zealous counsel this supposition may be, yet it is erroneous.
The general rule that the commission of a separate crime cannot be proven in support of the one named in the indictment is still in existence. The exceptions to this rule have not as yet superseded the time honored precept of the law. On the contrary, as said in Underhill's Work on Criminal Evidence, Section 87, cited with approval by Mr. Justice MOORE in State v.O'Donnell,
"These exceptions are carefully limited and guarded by the courts, and their number should not be increased."
In Commonwealth v. Shepard, 1 Allen (Mass.), 575, in speaking of evidence of other criminal acts, Mr. Chief Justice BIGELOW wrote:
"It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle that a party is not to be convicted of one crime by proof that he is guilty of another."
Likewise, in Towne v. People,
"But the general rule is salutary and departure from it is perilous, and hence courts are reluctant to extend the exception to the rule beyond well-established lines."
Further, in State v. Smith,
"There is no more insidious and dangerous testimony than that which attempts to convict a defendant by producing evidence of crimes other than the one for which he is on trial, and such testimony should only be admitted when clearly necessary to establish the essential elements of the charge which is being prosecuted. To establish guilty intent, unlawful motive, or criminal knowledge, it is permissible to show that the act charged against the defendant was one in a series of similar ones; but beyond this the state cannot go, and for the purpose of securing a conviction, show the perpetration of other similar acts, even though committed in furtherance of a general scheme, where there is no proof required to establish intent, motive, or knowledge, other than proof of the act charged itself. In other words, where the act charged against the defendant itself characterizes the offense, the guilty intent is proven by proving the act. Here the proof of giving of dry morphine on a prescription calling for morphine in solution was proof of the intent, and nothing more was necessary to establish criminality."
The woman named in the indictment, when called as a witness for the prosecution detailed the circumstances of the offense charged in the indictment, locating the time in November, 1923. In addition to that, prompted by counsel, in her narration she stated that two other previous abortions had been performed upon her by the defendant. This was against the objection of the defendant which was overruled by the court. She did not go into details about the method of performance of the other two abortions, or say anything as to the necessity of preserving her life on those occasions. In fact, she gave no one of the statutory ingredients of the crime. In State v. Kelliher,
"the prosecution assumed the same burden of proof as to each of the checks introduced to show guilty knowledge as in regard to the check for which he is being tried."
That is to say, applying the precedent to the instant case, even if the testimony were admissible, the prosecution had no right to have its witness make the bald statement that there were two other miscarriages without including in her testimony the other statutory elements of the crime, viz., intent to destroy the child and want of necessity to preserve the mother's life.
It is well at this point to dispose of the criticism of the opinion relating to the administration of drugs under the allegation of the indictment. It will be recalled that in the indictment, the only means charged to have been used in the performance of the criminal act mentioned was "a certain metallic instrument." The statute under which the indictment was drawn, reads thus:
"If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." Or. L., § 1900.
It is almost like kindergarten to repeat the ancient rule that the allegations and the proof must correspond. Attention is directed on this point, for example to the civil case ofKnahtla v. Oregon Short *Page 462 Line etc. Ry. Co.,
"Under a complaint which charged the injury complained of to have been caused by the negligence of a defendant railway company in permitting a bridge on its road to become and remain out of repair, and failing to keep proper watch and oversight of the same, the plaintiff will not be allowed to show that the bridge was constructed originally in an improper and negligent manner, and this because the proofs and allegations must correspond with each other."
It would seem that if a great railway corporation could invoke this rule in its defense, the same privilege ought to be extended to an individual defendant who is on trial in a case involving his liberty. Clark v. Commonwealth,
"It will be observed that the indictment charges that the defendant killed or caused the death of deceased by inserting into her womb a sharp and dangerous instrument, whereby she was wounded and lacerated, and therefrom died. It is not competent for the commonwealth to prove, nor for the fact to be considered by the jury, that the death of deceased was caused by poison administered by defendant in any way or manner. He is not charged with that."
Here the statute prescribes what shall be considered criminal methods in the accomplishment of the crime named in the indictment, and if the state would rely upon any one of those unlawful elements for conviction, it should be alleged in the indictment.
It is said in 22 C.J. 65, that *Page 463
"In legal acceptation, the term `evidence' includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved."
As to apparent exceptions to the general rule for admitting the testimony of other criminal acts of the defendant, Mr. Justice PARKER in State v. Bassett,
"These various statements of the so-called exceptions to the general rule are but statements that any evidence which tends to show the guilt of the person on trial is admissible, regardless of the fact that it may show the guilt of the defendant of another crime."
For illustration: A plans to kill B, and as preparation for the execution of his criminal design, he provides himself with a pistol. Finding it necessary to break into B's house to get at him, he also procures a crowbar, and actually does break into the house. It may be that with money honestly earned he goes to a gunstore and buys a pistol and ammunition for cash, and likewise purchases a crowbar at a hardware store. Unquestionably such actions could be shown by the prosecution as indicating deliberation and preparation for the commission of a crime. With equal propriety it could be shown that he stole the pistol from the gunstore, broke into the hardware store and stole the crowbar, and likewise smashed the door of B's house with the crowbar, entered and shot B with the pistol. Strictly speaking, the effort of the state in such a case would not be to prove the crime of burglary with the crowbar, or larceny of it and the pistol. The sole purpose of the state is to prove those acts shown by A to be in preparation for the commission of the offense of murder, and a fair statement of the rule *Page 464 is that the state is entitled to introduce evidence of any act which directly tends to establish the commission of the crime charged in the indictment irrespective of whether those other acts are criminal or innocent. The reason of the rule is plain. Its application is more difficult. The extremes to be avoided are the French practice of making an analysis and exposition of the whole life of a defendant whether the incidents disclosed relate directly to the criminal charge or not, and the other extreme of dogmatically rejecting anything involving another crime, however closely connected with the offense named in the indictment.
Mr. Justice AGNEW, in Shaffner v. Commonwealth, 72 Pa. St. 60 (13 Am. Rep. 649), laid down a rule which is widely approved and mentioned by Mr. Justice MOORE with approval in State v.O'Donnell, supra, as follows:
"To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury."
The case of State v. O'Donnell,
"The rule that evidence of crimes other than that charged in the indictment is inadmissible is subject to a few exceptions, speaking of which Mr. Underhill, in his valuable work on Criminal Evidence (section 87) says: `These exceptions are carefully limited and guarded by the courts, and their number should not be increased.' The author gives five exceptions to such rule, which may be summarized as follows: (1) If several similar criminal acts are so connected by the prisoner, with respect to time and locality, that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such other acts, evidence of any or all of the component parts thereof is admissible to prove the whole general plan: State v. Roberts,
The instant case cannot justly be referred to the first exception. There is nothing in the testimony to show that the several alleged abortions constituted an inseparable transaction. Each was a complete case by itself. The two alluded to by the witness were closed incidents. The offense charged in the indictment was complete in itself and might be heard and determined adversely to the defendant although he had never seen the woman before in all her life. Neither does the evidence show any situation portrayed in the second exception. The commission of the act was denied by the defendant, not only in his plea of not guilty, but also in the evidence. So far as the testimony is concerned, he either did the act or he did not do it. The issue is not to be clouded on behalf of the prosecution by setting up a man of straw of which there is no history in the record and proceeding to demolish it at the expense of the defendant's liberty. The third exception cannot, in reason, be applied to sustain the proof of other abortions. It may be applicable to evidence that was admitted without objection that the defendant had illicit sexual relations with the prosecutrix on November 9, 1923. This would furnish a motive for the effort to coneeal or prevent discovery of this unlawful coition by destroying the product of conception. It is an illustration of the third exception. In the record there is no history of any novel *Page 468 or unusual means in effecting the destruction of the child within the embrace of the fourth exception.
Referable to this exception are such cases as State v. LaRose,
"Three offenses committed in the same locality, each succeeding the other at short intervals, upon persons engaged in selling articles of merchandise of practically the same character, and in substantially the same manner, with the same kind of a weapon, and that a novel and unusual one would suggest to the ordinary reasonable mind that they were the offspring of the same brain and were planned and executed by the same person."
Manifestly this was for the purpose of proving identity, in that it appeared that a method peculiar to the defendant was employed in committing the crime. Here there is no question of identity. The offense was committed by the defendant Willson, or it was not committed by him. It is not necessary, *Page 469 and on the other hand it is unjust to confuse the issue by such devious means.
The prisoner is not charged in this indictment with any form of illicit sexual intercourse mentioned in the fifth exception. Incidentally it appears in evidence, according to the statement of the prosecutrix that he had such intercourse with her on November 9, 1923, but that is not the offense for which he was brought to trial.
It would require too much space to analyze in detail the seventy-five citations of precedents from other states and the federal courts contained in the brief in support of the petition for rehearing. Some of them are applicable, most of them are not. For the present it is enough to consider the 18 citations from the Oregon Reports.
State v. Baker,
The syllabus of State v. O'Donnell, supra, reads thus:
"In a prosecution for larceny it is prejudicial error to admit evidence that defendant had other stolen property in his possession, it not appearing that such other larceny was a part of the transaction for which defendant was on trial, or was connected with it in respect to either time or locality."
It is not pretended in the instant case that the woman was pregnant with more than one child at a time, or that being in a multiparous condition the defendant destroyed the several foetuses one at a time as an entire transaction.
State v. Savage,
In State v. McDaniel,
"Where the evidence offered logically forms a link in a chain of circumstances tending to connect the defendant with the commission of the crime charged in the indictment or is so connected therewith as to form one entire transaction it is admissible, although it may tend to prove other offenses." "When the body of an unmarried young woman was found in a secluded spot and it was evident that an attempt had been made to produce an abortion upon her and defendant who was indicted for her murder, was the last person seen with her, and it appeared that a few days previously he had some means of producing an abortion, a statement of defendant to the officers that he had been physically intimate with the deceased was so closely connected with the crime charged as to render it admissible though it be considered as amounting to a confession of a different offense."
Clearly, the conduct of the defendant in his relations to the deceased girl was admissible to show a *Page 472 motive on his part for killing her in order to avoid disclosure of his previous offense.
Murder was the charge against the defendant in State v.Martin,
"Under this exception to the general rule, where facts and circumstances amount to proof of another crime than that charged, and it appears probably that the crime charged grew out of the other crime, or was in any way caused by it, the facts and circumstances may be proved to show the motive of the accused."
It may be probable that the crime charged in this indictment grew out of the offense named by the prosecutrix on November 9, 1923, but there is nothing to show that the crime charged was the result of any alleged previous abortions.
The case of State v. Kelliher,
"The purpose of this evidence was to show guilty knowledge on the part of the appellant of the forgery of the Rice assignment, as tending to corroborate Turner as to appellant's connection with it, and *Page 473 the rule is that when the question of scienter, intent or identity is an essential ingredient of the crime on trial and such knowledge is denied by the defendant or mistake or accident claimed, proof of other like acts, even though they establish an independent crime may be shown as tending to show guilty knowledge or intent."
This quotation makes that case referable to the second exception, but its applicability here is quite another question because in the instant case there is not a question of scienter, intent or identity including a denial of knowledge by the defendant or mistake or accident claimed. It is upon this exception that evidence of other offenses is admitted in such cases. The issue here is whether the defendant performed the act or not. There is no claim of mistake or accident; there is no confession of the act or avoidance of it by other matter.
In State v. Baker,
As showing motive of the defendant to kill his wife, in State
v. Hembree,
"Proof of the commission of other offenses having no connection with the crime for which a defendant is on trial is irrelevant and inadmissible; but in order to establish the intent with which an accused performed a criminal act, or to ascertain a motive for such conduct, the prosecution may show other crimes committed by him leading to or connected with the offense for which he is being tried."
The principle is stated indeed in the opinion, but it is held that it was not applicable in that instance. It would seem that if incestuous relations between the father and daughter were not admissible in that case where the defendant was charged with the murder of both daughter and wife, the previous abortions in the instant case would have no place in the consideration of the crime here charged.
In State v. Germain,
"Testimony concerning similar offenses was properly received as tending to show motive and fraudulent intent."
The matter of fraud is one peculiarly open to the defense of mere mistake and under the second exception *Page 475 such evidence is usually admissible, but no such element is present in the instant case.
State v. La Rose,
State v. Finch,
What support for its contention the state can derive fromState v. Rader,
"What occurred at your place about July, 1908? A. Young Rader passed by where I was at work in my field. They came through my place and went down by the house and cut one of my milch cow's tail off."
The date of the arson was fixed at October 29th. Mr. Justice McBRIDE, speaking for the court said: *Page 476
"The state, for the purpose of showing motive, had a right to show that Barr had charged the defendant with the crime of mutilating stock and had had him arrested: State v. Finch,
An instance of obtaining a signature to a deed by means of false pretenses is found in State v. Whiteaker,
State v. Wilkins,
"If the defendant had grievously wronged the daughter of the decedent, he might reasonably suspect *Page 477 that his victim would take measures to bring him to justice or possibly to avenge the insult, whence would arise the motive for putting the decedent out of the way to protect himself or to remove her natural protector as an obstacle to his designs against the daughter."
This precedent is properly referable to the third exception but is not enlightening upon the present contention.
State v. McClard,
State v. Farnam,
State v. Morris,
"other animals owned by other parties were also found in his possession or claimed by him which exhibited evidence of having upon them worked-over brands similar to that upon the animal in question."
Mr. Chief Justice McBRIDE wrote:
"As a general rule evidence of other crimes is not admissible, but where the evidence tends to show the commission of a system of crimes by unusual methods, it is admitted. In the case at bar a single instance of rebranding might be attributed to a mistake as to the ownership, or to accident or carelessness in branding in the first instance and in order to show system, motive and intent, the evidence was competent."
That is another case where the act is admitted, but the intent with which it is done is contested, an instance of confession and avoidance, but such is not the contention in the present instance. The issue is plainly drawn by the plea and the evidence that the *Page 479 defendant did the act or not, irrespective of mistake or accident.
Another motive case referable also to the first exception isState v. Walters,
"Obviously he fired the shot in order to prevent arrest by officers of the law. The crime for which the defendant was being tried arose out of the robberies. The killing would not have occurred if the robberies had not been committed."
The evidence was admitted to show motive in that he killed the officer to prevent arrest for the robberies.
Not one of the cases cited by the state in its brief in support of the petition for rehearing has any legitimate application to the issue at hand, except the case of the State v. Rader,supra, which is directly opposed to the contention of the state.
The celebrated case of People v. Molineux,
People v. Sharp,
"bill then pending before that body in reference to street railways, so that its terms might authorize the struction of a railroad on Broadway."
The conviction was reversed. Mr. Justice DANFORTH said: *Page 481
"Such evidence is uniformly condemned as tending to draw away the minds of the jurors from the real point on which their verdict is sought, and to excite prejudice and to mislead them."
Mr. Justice PECKHAM said:
"To adopt as broad a ground for the purpose of letting in evidence of the commission of another crime is, I think, a very dangerous tendency. It tends necessarily and directly to load the prisoner down with separate and distinct charges of past crime which it cannot be supposed he is or will be in proper condition to meet or explain and which necessarily tend to very gravely prejudice him in the minds of the jury upon the question of his guilt or innocence."
Mr. Justice PECKHAM reviews the cases very extensively in reaching the conclusion that the reception of such testimony was erroneous.
According to the syllabus in Boyd v. United States,
"On the trial of a person indicted for murder, it appeared in evidence that the killing followed an attempt to rob. The court admitted under objections, evidence tending to show that the prisoner had committed other robberies in that neighborhood, on different days, shortly before the time when the killing took place, and exceptions were taken. Held that the evidence was inadmissible for any purpose."
Obtaining money by false pretenses in representing at a sale of a horse that he was sound and kind, was under consideration inCommonwealth v. Jackson,
"The evidence here admitted as to the three other fraudulent sales does not appear to come within any of the exceptions to the general rule that limits the trial to the immediate act for which the defendant is indicted. No instrument was used like the base coin or false plate which might have been uttered innocently, and of which a guilty knowledge was important to be shown * *. The transactions formed no part of a single scheme or plan, any more than the various robberies of a thief."
In People v. Fitzgerald,
"The circumstances themselves must be established by direct proof, and not left to rest upon inference. The inference which is to be based upon the facts and circumstances so proved must be a clear and strong logical inference, an open and visible connection between the facts found and the proposition to be proved. * * And however natural it may be for the common mind to reason that a person who has committed, or is suspected of having committed, an offense, is likely to commit another, and therefore be guilty of the one charged, yet the law refuses to recognize it as a fact or circumstance tending to establish the specific charge or to allow the accused to be prejudiced in that way with the jury."
In that case the people were permitted to prove that more than two years prior to the burning of the schoolhouse involved other property of the church corporation mentioned, covered by insurance had been burned; also, some of the defendant's private property; and that as a consequence, the agents of the insurance company insisted upon canceling policies upon other property which the defendant had procured to be written. There was much evidence of that character offered and received, but the real origin *Page 483 of the former fires was left to conjecture, and this was held to be error.
Rosenweig v. People, 63 Barb. (N.Y.) 634, was a case of manslaughter by producing abortion, which was cited by the state in its brief in support of the petition. On cross-examination defendant was asked if he had not performed an abortion about two years before on a young woman then in the courtroom, named by the prosecutor, and whom he had stand up so the defendant could see her. He replied that he had never seen her and had never performed an abortion upon her. Over objection the woman was allowed to testify that defendant had performed an abortion upon her about two years prior to the trial and this was held to be reversible error.
Baker v. People,
"It is well settled that upon trial of a party for one offense growing out of a specific transaction, you cannot prove a similar substantive offense founded upon another and separate transaction, but in such case the prosecution will be put to its election. An exception to this rule is found in prosecutions for passing counterfeit money, and the like, where previous attempts to pass counterfeit may be proved for the purpose of showing guilty knowledge; but the principle involved in this class of cases has no application to the case in hand."
In a local option case, Walker v. State (Tex. Cr.), 72 S.W. 401, the opinion states the principle thus:
"Wherever facts testified in regard to the case on trial are plain and certain, extraneous matter cannot be introduced under the rule in regard to system, developing the res gestae or proving intent."
In Towne v. People,
"While the decision of different jurisdictions vary somewhat as to the application of this exception to the rule, yet they are all in substantial accord upon the proposition that unless there be some apparent logical connection between the two offenses, either by reason of both being of the res gestae or both being part of one system, or the one tending to show a scienter in the other, the general rule governs, and the exception to it does not apply."
State v. Harris,
"It is evident that the framers of our constitution contemplated that every man was presumed to be innocent of crime until proven guilty. * * They did not contemplate that the state might charge the defendant with the specific crime of statutory rape in August, 1917, and proceeding by ambush, attempt to prove another independent crime of the same nature on the first day of January, 1918, having no connection with the one under consideration, which had never been pleaded in the information, and without any opportunity having been afforded the accused to meet the charge."
Murder was the subject under consideration in Martin v.State,
"In a prosecution for murder therefore, when the state attorney undertakes to show, that the defendant, who offered himself as a witness, was once before convicted of a similar crime to that for which he is *Page 485 being tried, he seeks to obtain an advantage in aid of conviction which the statute does not contemplate. When identity is uncertain or motive doubtful, or purpose questionable, evidence of conviction of similar offenses is not admissible, unless such relation exists between them that proof of one tends to prove the other. It is not competent to prove that one committed other crimes for the purpose of showing that he would likely commit the crime with which he is charged. 10 R.C.L. 939."
It is said in Commonwealth v. Elias,
"To make one criminal act evidence of another some connection must exist between them; that connection must be traced in the general design, purpose or plans of the defendant, or may be shown by such circumstances of identification as necessarily tend to establish that the person who committed one must have been guilty of the other. The collateral or extraneous offense must form a link in the chain of circumstances or proofs relied upon for a conviction; as an isolated or disconnected fact it is of no consequence; a defendant cannot be convicted of the offense charged simply because he is guilty of another offense."
State v. Lyle,
"Admission of the evidence as to the alleged Georgia offenses forced him to undertake in this case the trial of three other cases, not for the purpose of disproving the admitted criminal intent of the act charged, but to rebut the illegitimate inference of his guilt that would be raised by evidence that he had committed or was accused of having committed other similar crimes." *Page 486
State v. Shuford,
"On the trial of a mother for the murder of her infant child it is error in the court below to permit a witness to relate a statement made by the mother of the prisoner and in her presence, that the prisoner `had a child this way before and put it away,' to which the prisoner made no reply, and the reception of such evidence entitles the prisoner to a new trial. Evidence of a distinct substantive offense cannot be admitted in support of another offense."
The syllabus to Meno v. State,
"In a prosecution for killing deceased by means of an abortion, evidence that accused told witness that he had performed similar operations on other girls was inadmissible."
The defendant in Dennison v. State,
"It has been expressly held, however, that usually some connection between the crimes must be shown to have existed in fact and in the mind of the accused, uniting them for the accomplishment of a purpose common to both, before such evidence can be received, and the connection must appear from the evidence. Whether any connection exists is a judicial question, and if the court does not clearly perceive it, the accused should be given the benefit of the doubt and the evidence should be rejected. The minds of the jurors must not be poisoned and prejudiced against a prisoner by receiving evidence of this description unless the case comes clearly under the exceptions."
The court further held that the sole question was whether or not he stole the car; that scienter was not *Page 487 an element in the evidence calling for elucidation by showing another larceny.
We turn now to the question of intent. The only intent specified in the statute is "intent thereby to destroy such child."
"A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption." Or. L., § 797.
"The following presumptions, and no others, are deemed conclusive: —
"1. An intent to murder, from the deliberate use of a deadly weapon, causing death within a year;
"2. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another; * *" Or. L., § 798.
If A deliberately thrusts a dagger through the heart of B and so kills him, the state does not concern itself about otherwise proving criminal intent, for such proof is supplied beyond question by the two conclusive presumptions mentioned. Being thus conclusive, nothing is admissible to dispute or support them. The defendant may not controvert them, but he may escape them by proving self-defense to the extent of raising a reasonable doubt, or by showing that he was so insane as to be incapable of forming any intent.
In this case, the process of gestation had not advanced beyond six weeks if we may believe the testimony for the prosecution. It is common knowledge that at that stage no foetus is viable or at all capable of independent existence, so that any attack upon it must be with a view to its destruction. Thrusting a sharp instrument into it, as the prosecutrix details, is just the same as the killing of B in the example above, and the conclusive presumption attaches, precluding *Page 488 the necessity or propriety of other proof of intent. As a matter of common sense such treatment never has any other object than to destroy the child, at that age of the foetus, whether for a benign or evil purpose. The act itself proclaims the intent with which it was done. As before, the effect of the presumption may be avoided by showing that the use of the instrument was in defense of the mother's life. That, however, depends on her physical condition at that time. As against the defendant, it is not in the least affected by that of any other woman or even of herself at any other time. Under such circumstances, testimony about other abortions even on the same woman can have no effect except to attack the character of the defendant and prejudice the minds of the jurors against him. It is to indulge the reasoning, fallacious under all the precedents, that if the defendant is guilty of another crime he must have committed the one named in the present indictment. The state has offered some testimony neutralizing the exception, in that the mother was in good health, so that the jury could presume as a matter of evidence that the birth would happen according to the ordinary course of nature and the habits of life: Or. L., § 799, subd. 28. In this state of the evidence it was incumbent upon the defendant if he chose to justify the act, to show that what he did was necessary to preserve the life of the mother. Such was not his theory of the case. He did not attempt to confess and avoid the act charged. The theory of the defense was that of the general issue in which he flatly denied the charge. One of the conditions of the second exception stated in the O'Donnell case is "when the commission of the act charged in the indictment is practically admitted by the prisoner." *Page 489 This element is not present in the instant case and hence there is no ground for the employment of that exception, at least until the condition appears in evidence.
State v. Gilligan,
"In this case the question is whether evidence generally objectionable shall be admitted for the limited purpose of eliminating accident or mistake, and we think it would be an abuse of discretion to permit proof of similar but unconnected poisonings in a case where the state's evidence had already gone so far towards eliminating accident or mistake as to leave no reasonable doubt, in the absence of rebutting evidence, *Page 490 that the poison if administered by the accused must have been knowingly administered. Otherwise evidence inadmissible on the general issue would be admitted for the special purpose of characterizing an equivocal act, when the act in question was not equivocal and so the only practical effect which the evidence could have would be to prejudice the accused and violate the policy of the criminal law. * * If evidence of other similar but otherwise irrelevant poisonings is offered for the limited purpose of reducing the probability of accident or mistake, it is the duty of the court to determine whether the administration of the poison, if done by the accused under the circumstances claimed by the state is, in the absence of rebutting evidence, reasonably consistent with innocence, accident or mistake. If not, the evidence must be excluded without prejudice to its possible admission in rebuttal."
In the instant case no theory of the evidence, either for the prosecution or for the defendant, discloses that the acts imputed to the defendant were consistent with innocence, accident or mistake. Hence, the effort to prove intent by showing the commission of other offenses is entirely out of place.
It is said in Holzmacher v. United States, 266 Fed. 979, where the defendant was charged with a breach of the Espionage Act:
"In cases where there are eye or ear witnesses to the happening of an isolated transaction, and the sole question is whether it happened or did not happen, it is not proper or competent to permit the introduction of evidence of other remote and disconnected matters not charged in some good count in the indictment, to prove intent, where the element of intent is not involved in the crime charged."
After discoursing on the dangerous character of testimony respecting other offenses, Mr. Justice MACKINTOSH, in State v.Smith,
"Where the act charged against the defendant itself characterizes the offense, the guilty intent is proven by proving the act. Here the proof of giving any morphine on a prescription calling for morphine in solution was proof of the intent and nothing more was necessary to establish criminality."
People v. Minney,
"It was proving another separate and distinct offense, which had no tendency to prove motive or intent any more than the commission of one burglary or one theft had a tendency to prove the commission of another burglary or theft. * * To bring a case within the exception it must appear that there is some logical connection between the crime charged and the other similar crimes which the people seek to establish against the respondent upon trial. * * In the present case the commission of another like offense was wholly unnecessary to show intent. The act itself is one of those which when proven, conclusively establishes the malicious intent if committed by a sane person. Any number of like offenses would not tend to show malicious intent any more than could one. If the evidence established the fact that the respondent committed the deed, he would escape conviction only by a further finding by the jury that he was irresponsible by reason of insanity." *Page 492
In State v. Bersch,
"If the character of a crime is such as to show upon its face the intent with which it was done, that is, if the act speaks for itself, then such evidence is inadmissible."
Robbery was the subject of State v. Spray,
"The testimony of a separate offense must have some tendency to prove the charge in the indictment. It is admissible only on the ground that it has some logical connection with the offense proposed to be proven. It is clearly not admissible on the theory that if a person will commit one offense, he will commit another. From the instruction of the court given in this case, it appears this testimony was admitted for the purpose of showing intent. This was error; the facts constituting the offense, and the very act itself, as shown by the prosecuting witness, was sufficient evidence of intent. The act of defendant, if he committed it, needed no explanation to indicate intent. The act itself carried the intent with it."
Also, in Walker v. State (Tex. Cr.), 72 S.W. 401:
"Wherever facts testified in regard to the case on trial are plain and certain, extraneous matter cannot be introduced under the rule in regard to system, developing the res gestae or proving intent."
In People v. Lonsdale,
"Respondent was convicted of the crime of manslaughter by abortion. The theory of the prosecution was that on February 21, 1899, the respondent used an instrument for the purpose of procuring the abortion; that the womb was perforated; that deceased aborted on the morning of the 21st; and that she died at 5 o'clock on the 23d. That an abortion had been committed was conclusively established. * *
"The prosecution introduced the testimony of a witness to show that she had applied to the respondent to have an abortion produced upon her. The testimony was very weak, and was evidently that of an unwilling witness. However, there was sufficient in it to show the purpose of the woman's visit, and that some acts were done towards the accomplishment of that purpose. The attorneys for the people justify this testimony on the ground that it tended to prove guilty knowledge or intent, and rely uponPeople v. Seaman,
There can be no sort of question that at the state of pregnancy described by the prosecutrix, the introduction of the sharp instrument into her womb and turning it around therein as she states, was intended to destroy the child. No other reasonable conclusion *Page 494 could be drawn from that testimony. If the defendant did that act, the statutory intent is as plain as day, and as to it the conclusive presumption of the statute controls to the exclusion of extraneous facts indicating the commission of other offenses. The only other element of the statute, that of necessity to preserve the life of the mother, does not depend in any manner or degree upon the commission of other abortions; it depends solely upon the state of her health and the condition of her person at the time the act named in the indictment was committed. For that purpose, it matters not that he had committed a dozen criminal abortions upon her or any other woman. The preservation of the mother's life rests exclusively upon conditions existing at the time of the commission of the act charged in the indictment.
An analogous case is Gray v. State,
"only in those cases where the evidence adduced on the trial raised the issue that there might be no guilty intent, that evidence of other offenses became admissible and for that reason."
The final opinion relied upon a statute of Texas:
"The intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act." *Page 495
The substance of the statute quoted is much the same as that of Section 798, Or. L.
In Clark v. State,
"Evidence of this character is sometimes admissible on the theory of system to develop the res gestae or on question of identity, but none of these matters occurred in this case. The evidence is clear and unequivocal that the house of the alleged owner was broken into, and appellant found in the act of committing theft. Therefore the testimony in regard to the burglary of the other house was not admissible. It served no purpose, either of identification, system, or developing the resgestae. The case was made out by positive evidence here, and there was no legal authority for resorting to this character of testimony to make out this case."
Finally, this point, that where the act is unequivocal and inconsistent with innocence, if it occurred at all, as described by the evidence for the prosecution, no other testimony as to intent is material or admissible, is settled by the opinion of this court in State v. Smith,
"The motive which induced the burning of the building specified in the formal charge was the alleged enmity of the defendant and the accomplice against Williamson in consequence of the latter's appropriation of the grazing lands, but the intent with which such act was accomplished was immaterial, since the crime did not consist of degrees, and if the defendant set fire to the structure as alleged, an unlawful *Page 496 intent would be presumed from such unlawful act. Section 788, subd. 2, B. C. Comp. In equivocal transactions, where the offense charged is susceptible of explanation, thereby refuting the implication of criminality, the question of intent becomes an important element, but in nearly all other instances the purpose involved is immaterial. Thus if the defendant had admitted burning the building described in the accusation, but asserted that the conflagration was caused by accident, such as dropping an ignited match on combustible material in an attempt to light a pipe or a lantern, evidence of the subsequent destruction of the tent, etc., might have been admissible as tending to refute the claims of undesigned occurrence, and to show that the prior fire was applied to the structure with an unlawful intent to burn it."
The state relies upon such cases as People v. Seaman,
"If it becomes necessary, in a prosecution for manslaughter, in procuring an abortion, to show defendant's guilty knowledge and intent owing to the theory of the defense that the premature birth was due to accidental causes, and that death resulted from natural causes, it may be done by proof that the defendant had produced other abortions in the same house."
And again in Clark v. Commonwealth,
"Where deceased was found dead in an operating chair in the office of the defendant, a physician, and there was testimony tending to show that she died from the shock caused by an attempt to commit an abortion, declarations of the defendant tending to *Page 497 show that he had committed other abortions and held himself out as an abortionist were not admissible to show that he had committed the act in question, though they might have been admissible to show intent or motive if defendant had admitted that he committed the act and had attempted to justify it upon the ground of necessity."
These cases have no application to the instant contention, where the defendant does not pretend to confess and avoid anything. The case does not come within the second exception of admitting the act and seeking to avoid criminal responsibility for lack of intent or want of guilty knowledge. There are many cases involving the element of fraud, such as obtaining money under false pretenses, forgery, counterfeiting and the like that depend upon an entirely different principle from the case in hand, and have no application here. Much has been written on this subject and it must be admitted that there are cases supporting the doctrine advanced by the state in this instance. None of them are well reasoned. Most of them depend upon misapplication of instances of a crime entirely different from the one here charged. Many of them are extreme cases where the prosecution was eager for a victim. These make bad precedents.
In brief, the general rule against the admission of testimony about other crimes is still in force. The so-called exceptions are not to be extended. As said by Mr. Justice RAPALLO in People v. Corbin,
"The cases in which offenses other than those charged in the indictment may be proved, for the purpose of showing guilty knowledge or intent, are very few." *Page 498
The evidence of other offenses in this case only tend to blacken the character of the defendant. They are not admissible to show intent for that is completely and conclusively established by the act itself if the testimony introduced by the state is to be believed. It is contrary to the reason of the law to admit the objectionable testimony of other crimes. The defendant had a constitutional right to be informed of the nature of the charge against him and to be held to answer only the crime named in the indictment. No defendant ought to be deprived of his liberty by hue and cry or by the mob-mad yell of "Crucify him," but only upon an indictment constitutionally framed and proven by evidence of criminal acts, a connection between which "must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish."
The petition for rehearing is denied, and the cause remanded for further proceedings.
REHEARING DENIED AND CASE REMANDED.
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Cite This Page — Counsel Stack
233 P. 259, 230 P. 810, 113 Or. 450, 39 A.L.R. 84, 1925 Ore. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-willson-or-1925.