111 Ky. 443 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
Appellant was- indicted and tried for the murder of «Cora Waller, alleged to have been committed on the 9th of September, 1900, in the town of Sturgis, Union county. He was convicted at the January term, 1901, of her man
It appears that Miss .Waller was a young woman, aged about twenty-six or twenty-eight years, of a 'highly-respected family, herself a bright, intelligent, and attractive woman, her family standing among the first of Union county.Thomas Holt, a young man from thirty to thirty-five years-of age, who was formerly a deputy sheriff of his county (Union), also of a well-connected family, as is shown by the evidence, and who was an unmarried man, was her lover. On the oocaasion and date named he accompanied her from her home, near Morganfield, to Sturgis, a distance of some twelve miles arriving after dark. The day was Sunday. Appellant, aged about forty-nine years, was a physician of about twenty-five years’ practice. He also conducted a drug store at Sturgis, where he lived. At about eight o’clock on the evening of the date named, a buggy,, supposed to contain Holt and Miss Waller, was driven to appellant’s front gate. Appellant was in his residence,, and his .wife and daughter and some lady friends were sitting on the veranda. Holt asked if Dr. Clark lived there,, and, being informed that he did, asked for him to come out. As the doctor walked towards the gate, and aibout half of the distance, Holt asked if that was Dr. Clark-Answered in the affirmative, he stated, “I want to see you in your office.” Clark told him that he would meet him there as soon as he could get a light. Procuring a lantern,, he went to his office. The doctor, Holt, and Miss Waller then met at the doctor’s office, which was some distance from appellant’s residence, but on the same street. Within a few minutes thereafter, Miss Waller was dead. The doctor left the office to telephone to another physician, or for some purpose. One Skinner entered the office about
There was no living witness to the death of the young Woman save appellant. There was no mark or wound upon her person that appears to have been necessarily fatal in itself, or even dangerous. It was the theory of the Commonwealth that she died from shock, superinduced by an attempted criminal abortion perpetrated by appellant. It is of essential importance to the case of the prosecution that this theory be sustained, or the appellant must go acquitted. His presence, profession, opportunity, and other circumstances that will be noticed hereafter, are all cited as evidence of his connection with the attempted abortion; for that an abortion had been attempted by some one at some time seems to be pretty thoroughly established, and not gravely questioned. That this attempt was the proximate cause of the young woman’s death depended for its proof upon the ability of the Commonwealth to sustain its theory that the wounds found, upon the person of the young woman were sufficient in and of themselves to produce such a shock as would result in her death. To do this, resort was had to the testimony of the physicians who conducted the post mortem examination (no autopsy being held). Therefore the accuracy of their technical or scientific information as physicians, and the sources from which they obtained it, are of prime importance in testing the truth of the Commonwealth’s theory in this case. We can not help but regard it strange that in such a case, involving the honor of a woman, and the life or liberty of a man, an autopsy was not held by these physicians. No vital organ of the woman was examined, neither her brain, heart, stomach, or other vital organ. No examination wasi
Certain of the medical witnesses for the prosecution were asked,- over the objection of appellant, the following questions, which were answered affirmatively: “I understand you to say her mental condition — her depressed men
Another important question of practice raised by this appeal is presented in the evidence suffered to go to the jury from the witnesses AJonzo Perkins, A. R. Long, T. D. Omer, and Dennis O’Nan. The purport and effect of the
The testimony of all the medical witnesses was to the effect that the laceration of the cervix and membrane of the womb indicated that the person doing ■ them was a bungler, or one unacquainted with that class of operation. All the witnesses seem to be of opinion that any physician ordinarily skilléd in his profession could have penetrated the uterus with the sound, or instrument that may have been used, without having inflicted the wounds upon the passage to it. The effect of this testimony was, of course, to indicate that the deceased herself, or some other layman, more probably did this work than a professional person acquainted with the anatomy of woman, and skilled in the execution of the operation that was done in this case, or similar ones. It had already been offered in evidence that appellant was a physician of some years’ practice. Thereupon the Commonwealth offered to prove, and was permitted by the court to prove, by Dr. Haynes, one of the physicians who conducted the post mortem, that he was acquainted with defendant’s reputation as a
Defendant offered Drs. Quin and Dixon, who were shown to be physicians of extensive practice and experience, and in the course of their examination asked them
At the termination of the evidence the court gave the-jury the following instructions: “First. If you believe from the evidence, beyond a reasonable doubt, that prior to the finding of the indictment herein, in the county of' Union, State of Kentucky, the defendant, Clark, did willfully, feloniously, and with malice aforethought kill and murder Cora Waller by thrusting into her body an instrument, which by said use was ordinarily dangerous to her life, with the intent to procure an abortion upon her, you should find him guilty as charged in the indictment, and in your discretion fix his punishment at death, or confinement in the penitentiary of the State during his natural
The first second, and third of the above instructions, in our opinion, are without just criticism. It will be observed that in the fourth instruction the court undertakes to define the abstract principle of what would constitute a killing with malice aforethought and what would amount to voluntary manslaughter. If any instruction at all is to be given on this subject, there should be substituted for the fourth instruction the following: “The word ‘willful,’ as used in this instruction, means ‘intentional; not ‘accidental.’ The phrase ‘malice aforethought’ means a predetermination to do the act of killing without legal excuse, and it is immaterial how suddenly or recently before the killing such determination was formed. The killing of another in an act not in itself dangerous to life, but which results in death, contrary to the will and design of the doer, when committed in procuring or attempting to procure an abortion, is voluntary manslaughter.”
The fifth instruction is erroneous. It submits to the jury the question whether Cora Waller died from the effects of some drug or poison (one of the theories of the^ defense), and the court tells the jury that, if they believe that she so died, they will find the defendant not guilty. But the court qualifies this instruction by adding, “not inserted in her womb by the defendant.” The correct rendering of this instruction would be that, if the deceased came to her death by reason of some drug or poison in
The copy of the sixth instruction, quoted above, may be the result of an error in transcribing by the clerk, but, as the copy before us is the only authentic guide we have, it is not sufficiently intelligible to submit to the jury the law of presumption as to defendant’s innocence. Instead of the sixth instruction as given, the court should have given the following: “If, upon the entire case, you have a reasonable doubt of defendant being proven guilty, or as to any fact necessary to establish his guilt, you should acquit him; or, if you have such doubt as to the degree of the offense, you will find him guilty of manslaughter only.”
The judgment is therefore reversed, and cause remanded, with directions to award appellant a new trial under proceedings consistent herewith. Whole court sitting.