157 Ind. 549 | Ind. | 1901
John H. Diehl, appellant in this appeal, together with Garrett D. Leach and Frank F. Diehl, was charged by affidavit and information with having committed on the person of Mary Farwig, at the county of Delaware and State of Indiana, the felonious crime of abortion. On November I, 1899, the State filed in the Delaware Circuit Court an affidavit and information each of which contained three separate counts or paragraphs. Subsequently the State filed what is denominated a supplemental affidavit and information each embracing four additional counts. On the motion of appellant he was granted a separate trial, and on
The prosecution is based on §1996 Burns 1901, §1923 Horner 1897, which reads as follows: “Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to- be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman; or, with like intent, uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be fined not more than $500 nor less than $50, and imprisoned in the state prison not more than fourteen years nor less than three years.”
The affidavit and information, including that which is supplemental thereto-, each consists of seven separate counts. Appellant’s learned counsel contend that inasmuch as there is no express authority for an affidavit in a criminal cause to contain separate counts or paragraphs, such pleading, therefore, must be viewed and considered as a whole, and not in respect to its separate counts, and they assert that when the affidavit in question is so viewed and considered it becomes manifest that its several charges are so repugnant, self-contradictory, and antagonistic, that they destroy each other and thereby fail to show that appellant is guilty of any
The case of Deveny v. State, 47 Ind. 208, was a prosecution for a misdemeanor commenced before a justice of the peace. This court in the latter case said: “There is no such thing as different counts in an affidavit. If the two offenses could be included in one indictment of two counts, we perceive no reason why they may not be in one affidavit and prosecution before a justice of the peace, and tried together.”
Stoner v. State, 80 Ind. 89, was a prosecution on affidavit and information for the unlawful selling of intoxicating liquor. The information contained two counts based on separate affidavits, each of which charged differently the same offense. On reviewing a motion to quash the affidavit and. information in that ease, Niblack, J., said: “The court, as well as the parties, appears to have treated both the affidavits as the first and second counts of one and the same affidavit, and the appellant’s motion was to quash the ‘affidavit and information,’ evidently referring to both affidavits as constituting one judicial instrument, or an integral part of a pleading. No objection is urged to the sufficiency of what was treated as the second count of the affidavit. We, therefore, assume that no reason existed for questioning its validity, and that as to it the motion to quash was correctly overruled. The second count being sufficient, there was no error in refusing to quash the affidavit as a whole, and no separate motion to quash the first count having been made, no question is now presented upon its sufficiency.”
Our criminal code, §1813 Burns 1901, §1744 ITorner 1897, provides that “The felony or misdemeanor may be charged in separate counts in the indictment or informa■tion to have been committed by different means.” Under this section, where the State, as in the case at bar, institutes
Among the several questions presented for review in this appeal, we are urged to consider the evidence which counsel for appellant contend is not sufficient to support the judgment. As it will be necessary for us to refer to tire evidence in respect to some of the court’s rulings to be reviewed, we deem it proper at this point in our opinion to set out a
Appellant’s learned counsel specially argue and urge with much force two errors alleged to have been committed by the trial court. The first relates to the court’s excluding certain evidence offered by appellant; the second, in admitting certain evidence on behalf of the State. As previously shown in the summary of the evidence set forth a Mrs. McGusker was introduced by the State as a witness in its behalf. She testified that she was present, as a nurse attending Mary
When appellant was on the witness stand testifying in his
To the evidence sought to be elicited by this interrogation the State objected on the ground that appellant must be limited in testifying to that portion of the conversation testified to by Mrs. McOusker, and that he was not entitled to give what was said in the conversation between himself and Miss Earwig after Mrs. McOusker had left the room. Counsel for appellant then offered to prove by him in answer to the question propounded, the following: “That the deceased, Mary Earwig, invited the witness, Mrs. McOusker, to leave the room; that she left the room; that when she left the room the defendant asked the deceased what had gotten her into the condition she was then in, and how it happened, and how she came to the place where she was; that he had understood that the deceased had been to Indianapolis, visiting with her cousins there; that the deceased thereupon answered him, the defendant, that she did go to Indianapolis, but that she would never tell who it was that had gotten her into the condition in which she then was; that it had been done at Indianapolis, and that no one would ever know who had done it except herself and the doctor; that the de
The court sustained the objection of the State and held, in effect, that appellant might testify in regard to that portion of the conversation heard by and testified to by Mrs. McCusker, but that he was not entitled to give in evidence any part thereof which took place after she left the room, and about which she did not testify, and would not permit the evidence offered to be given to the jury, to which ruling of the court appellant duly excepted.
After the court had excluded the proposed evidence, other questions were propounded to appellant whereby he was asked if, during the conversation in question, Mrs. McCusker left the room, and he answered that she did, and was then asked to give the conversation between him and Miss Earwig, if any occurred after Mrs. McCusker had left the room at the time referred to by her in her testimony given on behalf of the State. To each of these questions the State objected on the grounds heretofore stated, and thereupon appellant offered to prove the conversation in question which he had with the deceased, and that all that he had with her was as stated in the aforesaid offer, each time setting it out in full. The court denied each of these offers to prove and would not perinit the evidence proposed to be given, and appellant each time duly excepted. In fact the record discloses that the question by which the residue of the conversation in controversy was sought to be given in evidence was put to the witness in various forms. The several
We may next inquire in respect to the limitation imposed by the trial court upon appellant to which he was confined in giving his version of the conversation in question. Counsel for appellant insist that the State by showing that the accused had a private conversation with the woman upon whom he was charged with having perpetrated the crime in dispute, and with whom the State also sought to show that he had entertained immoral and intimate relations, thereby sought to prove a guilty conversation or a guilty act, and by giving in evidence the part of the conversation which it did, that it endeavored thereby to show incriminating declarations upon the part of the accused; that by the court’s ruling to the effect that he was n5t entitled to detail the part of the same conversation which occurred after the witness for the State had retired from the room, and about which she did not testify, that thereby he was deprived of an important right; or in other words it is contended that inasmuch as the State opened the door to a part of the conversation in question, that thereby appellant was entitled to the entire conversation for the purpose of explaining and rebutting the portion introduced by the State.
Metzer v. State, supra, was a prosecution for larceny. The State introduced a portion of a conversation which occurred between the accused and another person, in relation to the coat which was the subject of the larceny. The accused sought to call out from the witness the entire conversation, of which the State had given a portion. This the court denied, and its ruling in this respect on appeal was held by this court to be error. In considering the question, Downey, J., said: “It is a general rule that when part of a conversation, admission, or confession has been given in evidence against a party, he may, on a cross-examination, or by fresh evidence from his own witnesses, prove the residue of the same conversation, admission, or confession, so far as it relates to the same transaction. * * * Those parts of a conversation or confession which are against a party cannot be given in evidence, without opening the door for those parts which are favorable to him, and they may be called out by a cross-examination of the same witness by whom the unfavorable parts have been narrated.” Oiting authorities.
Barbour v. Martin, 62 Me. 536, supra, was an action against a physician for damages on account of the death of a
Frank v. State, 27 Ala. 37, was a prosecution for murder. The State introduced a Mr. Bruton who testified in its behalf that the accused in a conversation with him made certain admissions and statements concerning the commission
On another view of the question, counsel for appellant contend that as the State, through its witness, Mrs. Mc-Cusker, introduced evidence to prove that appellant requested her to retire from the room in which he and the deceased were at the residence of Dr. Leach, and then in her absence held a private conversation with Miss Farwig, that, therefore, he was entitled, for this reason, to¡ lay before the jury what was said by him in the conversation. That inasmuch as the State had introduced his action of engaging in a private conversation with the girl, that therefore he had the right to prove or lay before the jury all that was said
Comfort v. People, 54 Ill. 404, was a prosecution for the larceny of a watch. The People were permitted to prove by a witness that the defendant was. seen in possession of the watch in question the next day after the larceny, and that he wanted to borrow $50 of a pawnbroker and pawn the watch as security. That the broker loaned him $40 and accepted the watch as such security. The defense then offered to- prove by the witness all that the accused said in connection with the subject when he first offered to pawn the watch, and what he said as to how he obtained possession of the watch. The court refused to allow this proof to be made, and the ruling on appeal was held to be wrong, the supreme court saying: “The prosecution having introduced evidence that plaintiff in error was in possession of the watch the next day after it was stolen, and what he said with reference to borrowing the money and pledging it as security, as evidence of his guilt, he unquestionably had the right to prove all he said in that conversation, not only as a part of the res gestae, but. as a part of the conversation. The fact that he had the watch in possession and was offering to pledge it for the money, was introduced to prove he was exercising ownership over it, and also, being recently after it was stolen, as evidence that he had perpetrated the larceny. These acts being relied upon to establish his guilt, he had a right to have the remainder of what he said at the time go to the jury to be considered.” See, also, Jones on Ev. §347.
The authorities which we have cited fully sustain the proposition that whether the proposed evidence is viewed or considered as a part of the res gestae of appellant’s act in holding a private conversation with the girl upon whom the crime was alleged to have been perpetrated, which act was laid before the jury by the State in the first instance, or
Another material question is presented for review by appellant’s counsel. On the trial the State raised the issue as to whether appellant, when he visited Miss Earwig at the
It is next insisted that the court erred in refusing to give to the jury certain instructions at the request of appellant. It is strenuously urged by his counsel that thereby he was deprived of having the theory of his defense properly presented to the jury by instructions from' the court. If this contention could be sustained it would follow that he was deprived of one of his essential rights. See, Banks v. State, ante, 190, and authorities there cited.
We cannot determine the questions raised upon the instructions refused, for the reason that the record discloses that some of those requested by appellant were given, while others were refused. The bill of exceptions containing the instructions given by the court on its own motion and those refused at the request of appellant, affirmatively discloses on its face that instructions numbered two, eleven, twenty-six, and twenty-eight, in the series requested by appellant,
It is next insisted that the evidence is wholly insufficient. Especially is it insisted that there is no evidence to' show an absence of the necessity of producing the alleged abortion in order to save the life of the woman in question. The evidence in respect to the commission of the alleged offense is, as is usually the fact in cases of this kind, by reason of the secret nature of the offense, wholly circumstantial. As the judgment must be reversed for the errors mentioned, it would not be proper for us to express an opinion in regal’d to' the sufficiency of the evidence, but we may suggest, in passing, that the absence of the necessity for producing the abortion in cases of this kind in order to save the life of the mother may be shown by circumstantial evidence. -Ency. of Law and Proc., p. 190.
Eor the errors pointed out the judgment is reversed, and the cause remanded to the lower court, with instructions to grant appellant a new trial. The clerk will issue the necessary order for the return of the prisoner to the sheriff of Henry county.