Hays v. State

Grason, J.,

delivered the opinion of the Court.

There was' a demurrer to the indictment which was overruled by the Court below, and during the progress of the trial several exceptions were taken by the appellant to the admission of evidence offered by the State, as also an exception to the ruling of the Court in refusing to permit certain declarations of Louisa Ross, offered by the appellant, to be submitted to the jury, which we shall proceed to consider in their order.

It was contended that the indictpient is defective because none of the counts sufficiently negative the proviso of the Act of 1868, chap. 1Y9, under which the indictment was framed. The proviso is in the following words : “ Provided, however, that nothing herein contained shall be construed- so as to prohibit the supervision and management by a regular practitioner of medicine of all cases of abortion, occurring spontaneously, either as the result of accident, constitutional debility, or any other natural cause; or the production of abortion by a regular practitioner of medicine when, after consulting with one or more respectable physicians,* he shall be satisfied that the fcetus is dead, or that no other method will secure the safety of the mother.”

*647 Without stopping to inquire whether, looking to the Act and its proviso, it was necessary in this case to negative the proviso, we are clearly of opinion that each count of the indictment does sufficiently negative the proviso. The Act makes it a criminal offence for any one to cause an abortion, unless it is caused by a regular practitioner of medicine, and even he is prohibited from causing it except under the circumstances particularly mentioned and described in the proviso. The indictment expressly negatives the fact, that the defendants, who were jointly indicted, were regular practitioners of medicine. It followed, therefore, as a necessary consequence, that they did not come within the proviso, and were not authorized, under any circumstances, to cause abortion. The demurrer was therefore properly overruled.

The first exception was taken to the admission in evidence of the paper found in a box in Louisa Eoss’ drawer, two days after she left her home at Beaver Creek. The paper was objected to on two grounds ; first, because it was not sufficiently identified as the paper which was handed to her by McCauley on the 14th August; and, secondly, because no evidence had been offered, up to that stage of the trial, tending to prove a conspiracy or combination between McCauley and the appellant, and therefore no act, declaration or letter of McCauley was admissible in evidence against her, and there was no offer to follow up the introduction of this paper with further evidence to connect the appellant with the crime.

Mrs. Eoss testified that she could neither read nor write, hut that she saw McCauley hand Louisa Eoss a piece of paper the day before she left her home, and that she put the paper in a box in her drawer, and that the Sunday after she left home, the witness found the paper, offered in evidence, in the same box and drawer into which Louisa had put it, and in which there were no other papers ; that she believed it to be the same paper, which was given by *648 McCauley to her daughter, because it looked like it had been torn from a blank-book ; that she had observed blue lines upon it, and that it had not been torn straight; that she and her husband had been the only occupants of the house in which they lived, after Louisa left, and that the latter had left home on the day designated in said paper, and had gone in the direction therein 'mentioned. It was further proved that Mrs. Ross, upon finding the paper, handed it to Annie Ross to read. Annie Ross then proved that the paper, so handed to and read by her, was the same paper then proposed to be offered in evidence. In connection with the offer of the said paper, the State further offered to prove that McCauley was seen with Louisa Ross, the same evening she left her home, in Hagerstown, six miles from her home. The Court admitted the paper to be read to the jury with an instruction from the Court that, if they believed it to be the same paper given by McCauley to Louisa Ross, then it was evidence tending tó show the circumstances under which she left her home, and by whom induced to leave it; but that, if they were not satisfied of the identity of the paper as that given by McCauley to Louisa Ross, then they should” not consider it at all. There was certainly evidence tending to prove that the paper offered was the same that was given by McCauley to Louisa Ross on the 14th August, and it was manifestly proper for the Court to submit that evidence to the jury, especially when so carefully guarded by the instruction accompanying its submission.

It does appear that, at the time this paper was submitted to the jury, no evidence had been introduced to connect the appellant with McCauley, or with the commission of the offence charged in the indictment, and it does not appear from the record, that the offer of the paper was accompanied by an offer to follow it up with further evidence, tending to prove a conspiracy or combination between McCauley and the appellant, to produce an abortion upon *649 Louisa Ross. If such an offer had accompanied the offer of the paper, the latter would have been properly admissible, and if the State had failed to introduce further proof tending to connect the appellant with the crime, the Court would, on motion of the appellant’s counsel, have withdrawn said paper from the jury, and instructed them not to consider it in making up their verdict. The record shows however, that evidence was introduced during the progress of the trial, to prove that there was a conspiracy between McCauley and the appellant, to produce an abortion upon Louisa Ross. One of the witnesses swore, that the appellant told her in June, that she expected a girl from Beaver Creek, to arrive at her house to be operated upon, to have her baby put away, but did not state the name of the girl. It was further proved, that on the evening of the day, on which Louisa Ross left her home, she was seen in company with McCauley in Hagerstown, going in the direction of the appellant’s house, and that she remained at the appellant’s house until the time of her death. It further appears in proof, that McCauley went to summon a doctor to attend her at the appellant’s house, that an abortion was there produced by the appellant, and that McCauley went to the house and carried the child away. All these facts were testified to, and they tended strongly to prove a conspiracy between McCauley and the appellant, and if they had been proved before the paper was offered, there can be no question that the paper would then have been legally admissible. So, as we have before said, would it have been admissible if the offer of it, had been accompanied by an offer, to follow it up with further proof to show the conspiracy and combination between the parties jointly indicted. The paper being inadmissible at the time it was offered, solely upon the ground of a want of a formal offer to follow it up with further proof, its rejection at that stage of the trial, would have only had the effect of postponing its introduction to a later stage of the trial, when the evidence of the conspiracy we have referred to, *650 had heen introduced. As it would have been clearly admissible after the introduction of such proof, and such proof was submitted to the jury, we are of opinion that the appellant was not injured by the admission of the paper at the particular time when it was admitted, and that the judgment ought not to be reversed upon this ground.

The second exception was taken to the admission in evidence of certain declarations of McCauley in July, with reference to Louisa Ross’ condition, for the purpose of showing that he knew she was then pregnant, the State offering to follow it up with proof of conspiracy, or confederation between him and the appellant, to produce the abortion as charged in the indictment. What we have said in disposing of the first exception, disposes of this-also. There was no error in admitting the evidence.

The third exception was taken to the question, “ What character of house does Susan Hays keep?” and the answer thereto, “from general reputation, she keeps a house of ill-fame.” It had already been proved, that Louisa Ross had been an inmate of the appellant’s house, that an abortion had been produced upon her at that house, and that McCauley had been seen to visit it, while Louisa Ross was there. The time, place and circumstances, at, and under, which a crime is committed, are always admissible, and proper evidence upon a criminal trial. If one entices another into a retired and secluded place, and there kills him, the character and surroundings of the place are always the subject of proof to the jury, or if one takes a girl to a house of ill-fame, and there causes an abortion to be jnoduced upon her, the character of the house is admissible in evidence, in order that the jury may know, whether the place is one where such a crime could be committed without much danger of detection and punishment. Such evidence is not an attack upon the good character of the party charged. That *651 such proof' may incidentally affect it, is no ground of objection to the admissibility of the evidence. We find no error in the ruling of the Court in this exception.

There is no error in the ruling of the Court in the fourth exception. After Louisa Ross’ death there was a coroner’s inquest, and the appellant was sworn and examined as a witness before the inquest. At that time no charge had been preferred against her, nor was she under arrest. She at that time gave an account of the circumstances attending the arrival of Louisa Ross at her house and her sickness and deatli there. It is always competent 1'or the State, in trials for criminal offences, to prove that the parties charged have previously made false or contradictory statements with respect to the circumstances attending the commission of the crime and the facts bearing upon themselves. We can discover no valid objection to the introduction of such statements made by the appellant in this'case.

Dr. Riddlemoser, a witness on the part of the defence, proved that he was a physician, and had attended Louisa Ross at the appellant’s house, and described her symptoms and condition, and stated that she complained of a pressing and burning in the stomach; the traverser then offered to prove by this witness that besides making a personal examination of her, he inquired her symptoms and feelings, and that, in reply, she stated, in addition to what he had before testified to, that she started from her home, on Beaver Creek, which was six or seven miles from Hagerstown, on her way to Mrs. Hays, and on her way, something like a lump dropped from her, and that she had been taking some stuff, and that she did not know exactly what was the matter with her. Upon objection made to this evidence by the State, the Court sustained the objection to that part of the offer which proposed to give the statement of Louisa Ross as to something having dropped from her on her way to Hagerstown; that she had been taking some stuff, and that she did not know what was the matter with *652 her, hut decided that any thing she said relating to her then condition, the seat of her pain and her description of its nature and extent, and any expression of her bodily and mental feelings, and any representation of her then ■existing disease or malady, were admissible. What she stated in regard to her journey, and what happened while ■on her way, and that she had been taking some stuff was a mere narrative of what had taken place before the physician visited her,t and was not legally admissible. We think the ruling of the Court went to the full extent to which the rules of evidence permit the declarations of sick persons to be given to the jury.

(Decided 25th June, 1874.)

The statement which was excluded by the 'Court was not admissible, as contended for by the appellant’s counsel, either as a dying declaration or as res gestee, and was properly rejected.

The judgment appealed from will therefore be affirmed.

Judgment affirmed.