88 Neb. 328 | Neb. | 1911
The defendant was prosecuted under section 6 of the criminal code. The defendant was found guilty. The sentence was imprisonment in the penitentiary, as provided by the statute, and he has brought the case here for review.
1. The defendant moved to quash the indictment for. duplicity, and in other ways raised the question whether this indictment charges more than one offense against the defendant. The part of the indictment challenged charges that the defendant “unlawfully, feloniously and maliciously did then and there use and employ, and did then and there unlawfully and wilfully advise to be used and employed in and upon the body and womb of the said Amanda Mueller, mother of said vitalized embryo, certain instruments,” etc., and section 6 of the criminal
It is insisted that to “use and employ” instruments to produce an abortion and to “advise to be used and employed” instruments for that purpose constitute two distinct offenses. It is contended by the state that but one-offense is charged in the indictment, and that is, “causing the death of Amanda Mueller by means of certain things done to bring about an abortion,” and that it was proper for the state “to allege the commission of the offense in any one or all of the ways inhibited by the statute.” The defendant cites and apparently relies upon State v. Pischel, 16 Neb. 490, and Smith v. State, 32 Neb. 105. Both of these cases were prosecutions for selling liquors in violation of the statute. In State v. Pischel, the indictment alleged that the defendant on the 22d day of October, 1882, “and on 'all the several days between said 22d day of October in the year aforesaid and the first day of April” in the following year did “unlawfully and knowingly sell and give away malt, spirituous, and vinous liquors, and intoxicating drinks,” etc. It was held that the indictment was too indefinite. “The act of selling any one of the kinds of liquors named in the law, as well as the act of giving away any of them under a pretext, is a crime. The indictment charges the whole.” In Smith v. State, supra, the indictment was also held to be too indefinite. It was somewhat more definite than the one
At the close of the evidence the defendant requested the following instruction: “The jury are further instructed that there is no evidence in this action that defendant advised to be used and employed an instrument,, or other means, with intent thereby to destroy a vitalized embryo or foetus of which Amanda Mueller was pregnant, and you will therefore find him not guilty of such charge in said indictment.” There was no evidence that the defendant advised the use of instruments, and the jury might properly have been so instructed. The court appears to have treated this part of the charge of the indictment as surplusage,, and in instruction No. 4, given by the court on its own motion, the jury are told unequivocally that, in order to convict the defendant, they must find “that said defendant, William H. Johnson, did unlawfully, wilfully, and maliciously make an assault upon said Amanda Mueller, and that said defendant unlawfully, wilfully, and maliciously did use and employ in and upon the body and womb of said Amanda Mueller certain instruments or instrument.” This ex-
2. The next contention of the defendant is that the court erred in not requiring the. prosecutor to elect whether he would proceed upon the indictment found by the grand jury or upon information. It appears that, immediately after the alleged offense complaint was made before a justice of the peace and a warrant issued against the defendant, who waived examination and was held to appear at the next term of the district court. At the next term the grand jury returned an indictment against the defendant and no information was filed. When the motion was made to require the state to elect how it would proceed, the court entered an order upon the journal in which it was recited that “the plaintiff in open court disclaims any purpose of prosecuting two actions against the defendant, and shows to the court that no information has been filed against the defendant in this court.” It is clear that section 435 of the criminal code has no application under the circumstance^ in this case. That section provides: “If there be at any time pending against the same defendant two or more indictments for the same criminal act, the prosecuting attorney shall be required to elect upon which he will proceed.” No doubt the statute would apply where both an information and an indictment were pending in the same court for the same act, but that was not the case here; no information having been filed. The grand jury having taken action and found an indictment, there was no occasion for any information and the practice pursued appears to be the proper one.
3. The defendant complains that the state did not place upon the witness-stand certain witnesses whose names were indorsed upon the indictment. Three witnesses were specified in this connection. Two of them were called by the defendant and fully examined and cross-examined
It is the duty of the prosecuting attorney to assist the jury in ascertaining the truth in regard to the charge against the defendant in a criminal prosecution, and it has been held that witnesses who can give evidence tending to show whether the crime charged has in fact been committed must be called by the prosecution in the first instance. In the case at bar the proof of the res gestee is beyond question. There is no doubt from the evidence that instruments were used upon the deceased by some one with the purpose and intention of producing an abortion. It was not claimed that these three witnesses would add anything in their testimony to the evidence bearing upon that question. It is argued that without doubt the mother of the deceased could testify to confessions made to her as to the guilty party, and that such evidence might be obtained in a cross-examination. No case has been cited in which the prosecutor has been required to put a witness upon the stand for such a purpose. The trial court necessarily had great latitude of discretion in the matter of the examination and cross-examination of witnesses. The better practice undoubtedly is to examine in the first instance all witnesses who are supposed to have knowledge as to the principal facts constituting the offense charged, and generally also those who personally have knowledge of facts bearing directly upon the question of the guilt or innocence of the defendant. If these witnesses prove to be hostile to the state, or manifest a desire to shield the defendant, the prosecution will be allowed, in the discretion of the court, to press them more closely in order to bring the whole truth before the jury. When, however, the res gestae is clearly proved, and the defendant is represented by competent counsel, it will not be considered an abuse of discretion on the part
4. The defendant complains that the court refused to give the jury a requested instruction as follows: “The law presumes that persons charged with a crime are innocent until they are proved by competent evidence to be guilty. To the benefit of this presumption the defendant is entitled, and this presumption stands as his sufficient protection, unless it has been removed by evidence proviug his guilt beyond a reasonable doubt.” We think the defendant is mistaken in saying in his brief that no instruction was given in the place of this one requested by him. The fifth instruction given by the court is to substantially the same effect.
The defendant requested the court to instruct the jury that, if they found certain things to be true in regard to the dying statement of the deceased, they should disregard the statement. This instruction was properly refused. It is for the court to say whether a sufficient foundation has been laid for proving a dying statement. In this case a sufficient foundation was laid, and it was properly admitted in evidence. It was for the jury to say how much force and effect should be given to this evidence, and that matter was properly submitted to the jury in the seventh instruction given by the court.
5. The remaining question to be considered in this case is as to the sufficiency of the evidence to support
The young man that she implicates was called as a Avitness by the prosecution. He testifies that he called upon the defendant at his office- and represented himself to be a married man, having been married but a short time, and that his wife was pregnant and desired to be relieved of it, and that the defendant told him that in such case a dilation was generally all 'that was necessary and that he would make an examination for a specified sum, and that, if the dilation was necessary, he would make an additional charge for that. Thereupon the witness told him that he Avpuld send his Avife to the office, and in pursuance of that he sent the deceased there. His testimony conflicts with the dying statement of the deceased in two particulars. He denies all responsibility for her condition, but fails to explain his interest in the case, and also denies that he went Avith her to the office. The defendant testified that this young man came to his office and represented that he was recently married and that his wife was in trouble, but denied that he represented that she desired to be relieved of her pregnancy. He also testified that soon afterwards a young woman came to his office, representing that she Avas sent by her husband who had called upon him, and that he made an examination and informed her that he could not tell the cause of her trouble, and that she had better wait for another month and call again. He testified that she never called again, and denies that he used any instruments or in any way attempted to produce an abortion. He was examined and cross-examined at large, and made some statements upon the witness stand that may have been regarded by the jury as discrediting his testimony; and, Avhile the evidence of his guilt is not so clear and satisfactory as to remove all doubt, Ave cannot say that reason
Under such circumstances, the court is without power to interfere; and, finding no error in the record, the judgment of the district court is
Affirmed.