91 Pa. Super. 553 | Pa. Super. Ct. | 1927
Argued October 10, 1927. The appellant was convicted in the court below upon an indictment which charged, in several counts, administering drugs with intent to procure the miscarriage of a woman, and use of instruments with like intent; the only date laid in the indictment being September 6, 1926. The court overruled a motion for a new trial and imposed sentence, whereupon the defendant appealed.
The evidence produced by the Commonwealth, as to the dates when the drugs were administered and the instruments used, consisted chiefly of the testimony of two witnesses as to the dying declarations made by the woman, who was the alleged victim of the malpractice. It is contended by the appellant that the dates were definitely fixed by the dying declaration and that if the drugs were not administered on the 6th of September, 1926, and the instruments used on September 9, 1926, that there was no evidence in the case which would have warranted a finding that the offenses, respectively, were committed on any other day. One of the witnesses testified that, in making her declaration, she was not positive as to the correctness of the dates which she named, that she said that the drugs were administered to her by the defendant on September 6th. "Then she commenced to mention something about a carnival and she said `I feel that is the date, because there was a carnival or something out at Hooversville'." With regard to the date when the instruments were used, the testimony of this witness was that: "She said she returned the following Thursday evening — she said she thought it was the *555
following Thursday — that she went in to the doctor and the doctor (this defendant) took her into the backroom" and then used the instruments. The other witness did not hear all of the dying declaration, but did hear the part referring to the use of instruments and testified that the dying woman fixed the date of the second visit to the office of the defendant, being the date when the instruments were alleged to have been used, as Thursday, September 9th. The defendant denied the commission of the offense and also set up an alibi, calling witnesses to prove that he was otherwhere on both September 6th and September 9th. He submitted points requesting the court to charge that unless the jury believed that the defendant administered pills or other drugs to the woman on Monday, September 6, 1926, there could be no conviction on that count of the indictment, and that unless the jury believed that the defendant made use of instruments upon the person of the woman on Thursday, September 9, 1926, there could be no conviction on the count of the indictment charging that offense. The court refused to so charge and charged the jury that if they were satisfied beyond a reasonable doubt that the woman was mistaken in her recollection as to the dates when the particular offenses were committed, and that the offenses were committed by the defendant on some other day about that time, they might find a verdict of guilty. These rulings are the foundation of the first, second and third assignments of error. The evidence disclosed that this dying declaration was not made until the 1st of October, 1926, at which time the woman was critically ill; she may have been mistaken as to the exact day of the month upon which events occurred about three weeks in the past. The testimony of one of the witnesses as to the dying declaration would seem to indicate that the woman was not absolutely certain as to the precise day of the month upon which the offenses were committed, but that she believed *556
she was giving the correct dates; as to the second visit "she said she thought it was the following Thursday." The Commonwealth is not bound by the date laid in the bill of indictment but can show any date within the statutory period and prior to the finding of the indictment, except in cases where time is of the essence of the offense: Com. v. Powell,
The fourth assignment of error presents a more serious question. After the jury had retired, a written communication was sent by them to the trial judge in his chambers, the court not being then open, which made inquiry as to whether or not the jury might acquit on some counts in the indictment and convict on others. The trial judge wrote a reply on the same paper sent down by the jury, stating that, either or both the defendants might be acquitted or convicted on any or all of the counts in the respective indictments except the first. This paper was not preserved and is, therefore not now available. The above further instruction to the jury was not submitted to counsel for the defendant, nor was it given to the jury in the presence of either the defendant or his counsel. At the time the inquiry was sent in by the jury, counsel for the defendant were in the attorneys' room, adjoining the court room, and could have been called, but were not called in. Neither defendant nor his counsel knew anything about such communication between the judge and jury until after the verdict had been rendered. Knowledge that the instruction had been given was communicated to the defendant or his counsel by *557 one or more of the jurors and a petition was thereupon presented to the judge for a rule. The judge frankly admitted that the statement of the jurors was correct and it was thereupon agreed that the judge should make a statement of what had occurred, and submit it to counsel for the defendant for their approval, and if approved, should be filed and become part of the record. The judge thereupon prepared a statement, which was approved by counsel for the defendant, and filed as part of the record. That statement embodied the facts above set forth.
The question presented by this assignment of error is ruled by the decision of this court in Commonwealth v. House,
The judgment is reversed and a venire facias de novo awarded. *559