*1 298 15,220.
Nо. People. Cobianchi v. The (141 688) P. [2d] August 3, Rehearing 1943. Decided denied October 1943. . in error. plaintiff Messrs. Upton, Alter & Mr. H. Law- General, Mr. L. Ireland, Attorney Gail Henderson, As- James S. Mr. Hinkley, rence Deputy, *2 the sistant, people.
En Banc. Young the of the delivered opinion Justice
Mr. Chief court. abortion, con- by murder with charged
Defendant a to and sentenced murder, degree victed of second he the judgment reverse To term the in penitentiary. a of error. prosecutes writ of the close At testimony.
Defendant introduced no the on the directed verdict case, for a moved people’s to support sufficient ground that the evidence assign- The a the motion. conviction. court denied the trial ments by of error are 1. Refusal directed to: court giving of and instructions tendered defendant of to 2. refusal instructions over objection; defendant’s strike testi- certain allegedly and irrelevant incompetent mony; and 3. directed denial of for a defendant’s motion verdict. ' take, In it is consider unnecessary view first and second there- of and we groups assigned errors, fore no their express opinion as to merits or demerits. We consider de- only error on the court’s assigned nial оf the motion for a directed verdict. This raises issue of whether a prima facie case guilt of defendant’s was established by evidence. The evidence competent is wholly circumstantial. The relied upon circumstances are as follows: 1941, deceased, Geraldine, suspect-
On October because had missed two she was ing pregnant called Dr. Holt menstrual and periods, requested bottle, examination. He her a directions gave a sample the next day to him bring procure what directed, urine. returned as and presented She had urine, though Holt of her assumed was sample deliv- Dr. Holt no of that This knowledge sample fact. ered to laboratory employed Miss technician Spraley, by Dr. to make Friedman modifiсation Halley, inject- Zondek-Ascheim test. is done This properly ing a of the of the suspected urine woman quantity into the stream of a female rab- pregnancy virgin blood bit that has been a male away kept proximity rabbit, and which is from four months to seventeen weeks old about four weighs pounds. Forty-eight killed, hours after such is its injection rabbit ovaries examined. If the woman pregnant, certain in the changes of the appearance rabbit’s ovaries ordi- narily occur, discernible to one skilled such making tests. If the woman is not pregnant, no ordinarily change produced the appearance of the test *3 ovaries. This was made, and Dr. Halley’s was that report the result was positive.
According to the medical the test not testimony, absolute, but cent of the cases it ninety per proves to be correct. Dr. Holt could not state that definitely the of urine to him sample presented was that of Geral- dine, nor did other any witness so His testify. testimony was that she presented it to him Dr. as such. Neither his Halley nor technician was able to state positively, nor did any other witness testify, that the rаbbit used for the test was of the age or it weight required, that was a rabbit, if virgin so, and that it had not been in to a proximity male rabbit. .It was admitted the if rabbit was not a if virgin, so, or and it had been in prox- imity male, to a its ovaries would have the appear- ance noted and that the test would be if positive, even deceased was not pregnant. It was further admitted if had a deceased certain kind of tumor the test would did not though pregnancy exist, be even positive might conditions other woman physical many testimony destroy accuracy no its a test. There was as nor tumor, a such that deceased was not afflicted with testimony excluding any possible conditions other might inaccurate. make test at St. Geraldine he examined Dwyer testified
Dr. shе time which 1941, at Hospital on October Luke’s attempted an abortion had that she to him stated Saturday, doctor whose a and that eleventh, October follow- on the had curetted state, not name did she testimony ing Sunday, medical twelfth. October pro- proper effect that curettement was to Dwyer’s following examina- ceeding Dr. an abortion. might pelvic be caused tion abscess disclosed organs of from an examination abortion, but preg- nothing indicate that deceased discovered per- nancy had had or that an abortion been existed pregnant, He if had been formed. stated that Geraldine gotten placenta tissue, have would some sort of Dwyer’s testimony this he did find. Dr. towas effect further that he did not knоw the cause of pelvic abscess; that an but one, abortion could cause many that it could result from causes other and that peculiar might was not female, be found also in a male. Hospital three Luke’s weeks remained St.
Deceased apartment Dwyer’s to her returned care, under Dr. where then entered St. weeks, two remained for Dwyer operated Hospital Joseph’s on her where according appendicitis. testi- This, acute medical might mony, abortion, abscess, from the or resulted many septicemia causes, other and the *4 days operation caused her death a few after the could post-operative operation been result of appendicitis. Dwyer acute In сertificate, the death Dr. septicemia stated that death from was “due to instru- perform something mentation to an abortion, or like that.” Due to the that fact Geraldine stated she had had anything an abortion, and not he found from his ex- Dwyer reported death. amination, Dr. so the cause of attorney For the same reason he caused district to be investigators from that office inter- notified, two as the Geraldine, action, viewed so far record no predicated investigation, and discloses, was on their neither of them in the case. was a witness pathologist Maynard, performed autopsy Dr.
The County City an acute Denver, revealed for the death that ovaries, and uterus and inflammation of the by generalized pеritonitis. no It disclosed was caused pregnancy evidence of abortion. or of an that people, testified for the Fixler, a witness Jack Glenaire that she lived fiancee; his was Geraldine he Denver; Apartments Place, at 1431 Glenarm he time the first defendant; Cobianchi, Dr. knew place worked, he him in the where talked to was the Glenaire him at the secоnd time he talked to theOn in bed. sick Apartments where Geraldine presence of de- in the her to says talked latter occasion her condi- told about time fendant at which was, condition what state tion, but he does He testified time. sick at than that she other worry, that Geraldine him not told that defendant everything would of, and taken care would be well says doctor right. for a different he asked be all Witness Dwyer, Luke’s Hos- her took to St. who and found pital, also testified stated. witness as hereinbefore apartment her returned to that after Geraldine Hospital, there, Dr. Cobianchi visited St. Luke’s knowledge twice;” there his “once or witness was present He further stated that on one such occasion. defendant asked to be called the name of “James” telephone tapped; because he feared his wires would be defendant, after arrived, Geraldine’s mother would call witness at the hotel to learn of her condition. Witness testified that after Geraldine died he took a long badly ride with defendant who felt over her death girl and told him what a fine she was and also “that
303 He asked wit- he lost in his рractice.” was the first case in- being he had and money ness how much spent, this amount $25.00, he gave formed that had spent hundred to “he me one witness, was with stating on, and per cent; just from now we were brothers front stick to called in said would be my story —he of the officers done the investigated Geraldine —that job herself. had He did We dinner together night. not want to be seen down me and had town with we dinner on Witness testified further Broadway.” that de- fendant paid Geraldine’s apartment, $17.00 $35.00 her mother, and gave $35.00, witness and told him that he was for an leaving operation and would write witness a letter, but that he did not do so. After a re- cess, witness was again stand, called to the and in re- to the sponse question, “What did he say?” answered, “He [referring said it was the first defendant] сase he had lost in twenty-five years of abortion.”
Witness nurse Burr, who attended Geral- practical dine for a week after her return from Luke’s Hos- St. pital, stated that, “There was a man came there who introduced to her as and whom learned to Henry, be Dr. Cobianchi.” This man, she stated, telephoned every day while she there, about inquired Ger- aldine’s condition. The is a foregoing of the state’s digest testimony. in this the evidence the opinion are of
We in the in laid charge case is to support insufficient one not establish it does the reason formation for delicti. criminal case —a corpus vital in thing every elements, two in a murder case requires delicti corpus the result Death as (1) each of which must be proved: inflicted; that such (2) of an act or wound performed, or such wound un act was unlawfully performed, inflicted another. McBride v. 5 lawfully Colo. People, 91, 953; 37 Pac. Ausmus and Moon v. 47 App. People, 204; 107 Pac. 30 C.J. Colo. 287. In the Ausmus and case Moon quoted approval lan- following corpus People “The
guage 137: Bennett, 49 N.Y. v. result, components, as the has two viz.: death delicti agency means.” criminal another as *6 a requires as abortion an was there Proof of statement pregnancy. The proof of prerequisite, this on shows forth, set evidence proof is such whether questioned might be point it be pregnancy existed justify conclusion toas depends proof this fact of The yond doubt. a reasonable admittedly' is test, which wholly rabbit on so-called it cases where ninety per of the only cent in accurate testimony pointed to out expert medical No is made. pregnancy ex effect to the find none and we us isted; but, pregnant, assuming that deceased charged, the abortion proof element of the second by in the produced instrument namely, an that was only di The more doubtful. anothеr, is even hands of that an abortion in the evidence rect information brought to the it, and as about, as to who occasioned Dwyer testimony Dr. used, means is found in the attempted deceased him she had used a catheter and told bring a herself, an abortion on and had had about day. by curettement a None doctor, unnamed, the next by physical of the examinations doctors revealed pregnancy, They evidence of or of an abortion. so testi Dwyer fied, and Dr. a stated that if there had been pregnancy pla and an abortion, he would have found testimony cental being tissue. This falls far short of sufficient by to sustain a verdict that death caused procured an abortion and caused an in instrument — the hands of defendаnt one of the essentials of the corpus delicti charged. of the crime point pertinent it is
At this observe People, (2d) Clark v. 103 371, case of Colo. 86 P. argued “If it be 257, we said: made to statements Currigan supposed per Dr. mitting admissible under a rule give history patient case, of his or her that such statements are we must remember admissible
305
symptoms
they
patient’s
only
relate
as
to the
in so far
concerning
ques-
that statements
condition,
physical
injury
condition
responsibility
tion of
202,
Lowery
201,
Ala.
Jones, 219
v.
are inadmissible.
(see
top of
also
553, 555-6
A.L.R.
704, 706,
121
64
So.
responsibility
fixed
p.
Annotation).
cannot be
564
legal
way
evidence
as a substitute for
in this roundabout
line
with the
This seems to be
that is
available.”
holding of
cases:
v.
other well-reasoned
Commonwealth
(2d)
Donnell,
302
Dawn,
255,
315;
Mass.
N.E.
v.
19
State
Me. 500,
747;
Sinclair,
128
148
Commonwealth v.
Atl.
Wigmore
(1st
The next there suf whether testimony jury ficient other to warrant to a a submission procurеd question of or defendant of whether only deceased. The other testi caused abortion of mony Burr, is that of Fixler the nurse Jack who week after her return attended deceased for a from St. Hospital. Luke’s intro nurse testified that was person “Henry,” to a Geraldine, duced and called on as who person that she afterwards learned the Dr. was being Cobianсhi. Who mover was the in his so intro duced, whether defendant or is not Geraldine, indicated. She stated Dr. Cobianchi asked her leave the room he while talked to Geraldine. Jack Fixler testified that Geraldine was fiancee; his that he at Geraldine’s apartment once Cobianchi was there; when him called Dr. Cobianchi came, mother
after Geraldine’s of name condition, using ascertain Geraldine’s his afraid defendant, stated he was he, because “James” in- be he would would be tapped telephone de- death, Geraldine’s the officers. After vestigated Fixler, as the much and told upset fendant very he had lost first case this testified, latter court, witness and, in his after a recess practice, he the first case this “was testifiеd that defendant said Fixler fur- had lost in abortion.” years twenty-five ther him “were they testified defendant told brothers now on and to stick to my story [*] [*] [*] that Geraldine they done the herself.” job Whether were brothers for an abor- respect responsibility tion, or for her antecedent condition that caused her to produce the abortion or is matter produced, speсulation only. Fixler testified that defendant insisted on him for reimbursing he had expended, paid $25.00 rent on $17.00 Geraldine’s apartment, gave mother $35.00.
It may be conceded that these circumstances tend to cast a suspicion on defendant as some having feeling for responsibility Geraldine’s condition. The fact the witness Fixler, of the fact knowledge of her as pregnancy, may be inferred from his testimony, had expended in behalf of a girl $25.00 says expected to marry, might some imply feeling of respon- sibility his part her condition. Similarly, defend- ant’s solicitation for Geraldine’s welfare is explainable on a reasonable theory other than that he had caused *8 an abortion for her. So far as the is concerned, record there is nоt a word of testimony in it establishing that defendant is a physician and surgeon. Assuming that he is, and was at that time, even the statement that he is said have made, ,the that this was first case of abor- tion he had lost in years, not twenty-five is and of itself an admission of guilt, for is a well known fact accident, from other causes and abortion cases in- not was, this one said self-inflicted, as decеased requires the services aftermath frequent that their physician surgeon. The statement physician and of a twenty-five case of lost a abortion that he had never years equivalent certainly a statement not the twenty-five years, producing abortions for had been the produced that she was one that he on Geraldine patient abor- of an first who had died from the effects per- by merely procured physician tion A who him. suggestion in formed a there is not a currettement, and any by this record that more than this was ever done any physician, might say necessary implica- without a criminality, patient tion of if even the he had died, that never before lost a case of abortion. circumstance by defendant, thе statement attributed to while indicated guilt, equally inno- consistent consistent with with question cence. There can be no when such is upon, fact and circumstantial evidence alone is relied that a circumstance or circumstances consistent with guilt equally but consistent with innocence, not does proof constitute sufficient to sustain a conviction. Fur- thermorе, the evidence that the abortion caused the death of produced, Geraldine, even if one was is far from conclusive. septicemia, Death resulted or as autopsy generalized peritonitis; disclosed, from but pelvic of this, abscess, which could be, but which may may have been, caused an abortion and peculiar which is not even to the female sex, was an adequate cause. Likewise, post-operative effects of the appendectomy appendicitis, acute might be according caused, to the testimony, medical from the abscess, many or from other adequate causes, was cause peritonitis for that resulted in Geraldine’s death. difficulty obtaining recognize
While of accompanied proof abortion, of the crime of murder secrecy prevents generally is, direct as the act testimony guilty lips participants, by any *9 lips death, and the of one of which other of sealed may refuge opened in is taken not be if which immunity this is incrimination, constitutional from self grounds overturning for our the rules of evidence designed that are ef- coeval with the law, common protection they fective for the result of the innocent. If guilty escaping just penalty,’ occasion imperfection must be ascribed to the law, of the permeated like all human institutions is with human imperfections. Bearing difficulty proof in mind the possibility guilty escaping punishment, of the opinion, are of the judgment nevertheless, that thе this case must people be reversed for failure of the prove by competent corpus evidence the delicti: “death as the agency result, and the criminal of another as the means.” Ausmus People, supra. and Moon v.
Judgment reversed.
Mr. Justice Burke and Mr. Justice dissent. Jackson Mr. Justice Burke.
I dissent. I think inferences from the evidence were jury say for the they improperly we cannot were usurps drawn. I think the province Court of the jurors and substitutes its own inferences for theirs.