Lead Opinion
delivered the opinion of the court:
The grand jury of Cook county, on the 22d day of November, 1907, returned into the criminal court of Cook county an indictment against the plaintiff in error charging her with having caused the miscarriage of, or produced an abortion upon, Annie Horvatich, a woman pregnant with child, on the fourth day of May, 1907, and thereby causing her death. The plaintiff in error was arrested, and, having pleaded not guilty, was put upon trial before a jury and was convicted and sentenced to the penitentiary for the period of twenty years, and she has sued out this writ of error to review said judgment.
The indictment contained' four counts.' The first count, omitting the formal part, charged “that one Lucy Hagenow, otherwise called Louise Hagenow, otherwise called Ida VonSchultz, late of the county of Cook, on the fourth day of May, in the year of our Lord one thousand nine hundred and seven, in said county of Cook, in the State of Illinois aforesaid, in and upon the body of one Annie Horvatich, in the peace of the People of the said State of Illinois then and there being, unlawfully, feloniously, willfully and of her malice aforethought did make an assault, and that the said Lucy Hagenow a certain instrument, a more particular description of which is to the jurors unknown, which she, the said Lucy Hagenow, in the hand of her, the said Lucy Hagenow, then and there had and held, then and there unlawfully, feloniously, willfully and of her malice aforethought did force, thrust and insert into the private parts and womb of her, the said Annie Horvatich, she, the said Annie Horvatich, then and there being a woman then and there pregnant with child, with intent then and there to produce the miscarriage of her, the said Annie Horvatich, and that she, the said Lucy Hagenow, then and there by the said forcing, thrusting and inserting the said instrument, as aforesaid, into the private parts and womb.of the said Annie Horvatich, unlawfully, feloniously, willfully and of her malice aforethought, caused the miscarriage of her, the said Annie Horvatich, it not being then and there necessary to so then and there cause such miscarriage for the preservation of the life of her, the said Annie Horvatich, as she, the said Lucy Hagenow, then well knew, she, the said Lucy Hagenow, then and there well knowing that the use .of said instrument as aforesaid, at the time aforesaid, in the manner aforesaid, would then and there produce such miscarriage; that by reason of said miscarriage in the manner and at the time aforesaid, the said Annie Horvatich, from the said fourth day of May, in the year of our-Lord one thousand nine hundred and seven, until after-wards, to-wit, the sixth day of May, in the year of our Lord one thousand nine hundred and seven, in the county of Cook and State of Illinois aforesaid, did languish, and languishing did live, on which said sixth day of May, in the year of our Lord one thousand nine hundred and seven, in the county of Cook and State of Illinois aforesaid, she, the said Annie Horvatich, by reason of said miscarriage, died; and' so the’ jurors aforesaid, upon their oaths aforesaid, do say that she, the said Lucy Hagenow, her, the said Annie Horvatich, in manner and form aforesaid, unlawfully, feloniously, willfully and of her malice aforethought did kill and’ murder, contrary to the statute and against the peace and dignity of the same People of the State of Illinois.”
The second count is the same as the first count, except the word “abortion” is substituted in the second count at the' several places therein where the word “miscarriage” occurs in the first count.
The third count, omitting the formal part, charged “that one Lucy Hagenow, otherwise called Louise Hagenow, otherwise called Ida VonSchultz, late of the county of Cook, on the fourth day of May, in the year of our Lord one thousand -nine hundred and seven, in said county of Cook, in the State of Illinois aforesaid, in and upon the body of one Annie Horvatich, in the peace of the People of the State of Illinois then and there being, unlawfully, feloniously, willfully and of her malice aforethought did make an assault, and that she, the said Lucy Hagenow, in some way and manner and by some means and devices, a more particular description of which is to the jurors unknown, then and there unlawfully, feloniously, willfully and of her malice aforethought did cause the abortion of her, the said Annie Horvatich, a woman pregnant with child then and there being; that it was not then and there necessary to so then and there cause such abortion for the preservation of the life of the said Annie Horvatich, as she, the said Lucy Hagenow, then and there well knew; that she, the said Lucy Hagenow, then and there well knew that the use of those means and devices at the time aforesaid, in the manner aforesaid, would then and there produce such abortion; that by reason of such abortion so as aforesaid produced by the said Lucy Hagenow in the manner and at the time aforesaid, the said Annie Horvatich, from the said fourth day of May, in the year of our Lord one thousand nine hundred and seven, until afterwards, to-wit, the sixth day of May, in the year of our Lord one thousand nine hundred and seven, in the county of Cook and State of Illinois aforesaid, did languish, and languishing did live, on .which said sixth day of May, in the year of our Lord one -thousand nine hundred and seven, in the county of Cook and State of Illinois aforesaid, she, the said Annie Horvatich, by reason of said abortion, died;- and so the jurors aforesaid, upon their oaths aforesaid, do say that she, the said Lucy Hagenow, her, the said Annie Horvatich, in manner and form aforesaid, unlawfully, feloniously, willfully and of her malice aforethought did kill and murder, contrary to the statute and against the peace and dignity of the same People of the State of Illinois.”
The fourth count is the same as the third, except the word “miscarriage” is substituted in the fourth count at the several places therein where the word “abortion” occurs in the third count.
The evidence shows that on Thursday, the second day of May, 1907, Annie Horvatich, with her husband, Michael Horvatich, and three children of a former marriage, the oldest of whom was nine years, livéd at 4816 Justine street, in the city of Chicago; that the said Annie Horvatich and Michael Horvatich were married on the 27th day of January, 1907 ;• that on the second day of May said Annie Horvatich was in her usual health; that on that day she did the family washing and in the afternoon went by street car to a savings bank in South Chicago, some three miles distant from her home, and drew from her savings $25 in cash; that at about 6:30 o’clock of the same evening Michael Horvatich, who testified through an interpreter, stated his wife said to him “to go with her and not to be afraid;” that he and his wife went by street car to 480 North Clark street, the home of the plaintiff in error, where they arrived late in the evening; that the plaintiff in error lived in the second flat above the street; that he did not know plaintiff in error and his wife did not tell him her reasons for going to the home of plaintiff in error; that his wife took no clothing other than she had on her person; that he left his wife in the hall of the building in which plaintiff in error lived; that his wife said to him “to go home; I will stay hére;” that she told him “to take care of the children and to come and see her on Saturday;” that he left his wife at the plaintiff in error’s house and went home; that on Friday afternoon he received the following letter from his wife:
“Beloved Mike—I let you know everything is well. Slept very well. Take care of the children. Tell Fanny not to go outside unless she puts a cap and coat on her. If she won’t, don’t leave her out. You see how she is. You didn’t have any coffee at home and you were mad this morning. I will take care you won’t be angry. Don’t be-afraid. There won’t be any serious happenings. Will be in the house that day until I go home. Come over Saturday afternoon as you said, and tell the children where you are going, so that they won’t go away from the house. Tell them I will come back with you. Nothing else. With love and regards to the children. A. H..
480 North Clark street, care Dr. Hagenow, city.”
—that on Saturday afternoon he went to the house of the plaintiff in error; that he found his wife sitting on the bed in a room in the house of the plaintiff in error; that she had on an undershirt and her hips were covered by bedclothes; that she said she was not feeling well and that she would remain until Monday; that he returned to his home; that on Sunday afternoon he was summoned by telephone to go to the house of the plaintiff in error; that he arrived at her house at ten o’clock that night; that he found his wife in a different room; that she was in bed; that a doctor by the name of Rasmussen was present; that his wife was very sick; that his wife wanted a doctor from South Chicago to be called, but that the plaintiff in error said it was too late at night to call the doctor; that he remained until toward morning; that his wife was worse; that he went to the house of Mary Galavitch, who could speak English, and she went with him to the plaintiff in error’s house; that when they arrived the plaintiff in error told them Annie Horvatich was dead; that she had died at five o’clock that morning; that the plaintiff in error gave them a card and directed them to an undertaker in the neighborhood to take charge of the body; that Michael Horvatich stated that he would prefer an undertaker whom he knew; that the plaintiff in error then sent them to the office of Dr. Rasmussen for a death certificate; that they called upon Rasmussen, and he gave them a certificate that Annie Horvatich died of pneumonia and bronchitis.
W. J. Ereckleton, an undertaker, testified that he was sent by Michael Horvatich to 480 North Clark street -for the remains of his wife; that he arrived about five o’clock in the afternoon of the sixth of May; that the plaintiff in error said she was running a private hospital; that he should wait until it was dark and take the body from the house through the alley; that he returned at nine o’clock the same evening with'an assistant; that he had difficulty in getting the body out of the building, as the hall and steps were narrow; that the plaintiff in error said there was ample room; that her undertaker never had any trouble in getting bodies out the back, way; that he took the remains to the south side and the body was- interred.
It also appears that on the 13th of’ May the coroner of Cook county caused the remains of Annie Horvatich -to be disinterred in the presence of her brother, John Sneller, and others who were present; that Dr. E. R. ReCount, a teacher in Rush Medical College,- Dr. Warren J. Hunter, coroner’s physician, and Dr. Rudolph W. Holmes, a graduate of Rush Medical College and a specialist in obstetrics and gynaecology, made, a post mortem examination. They found the vital organs of the body, such as the lungs, the heart, the spleen and the stomach of Annie Horvatich to be in a healthy and normal condition; they also found that Annie Horvatich had been pregnant but found no foetus. They found the uterus torn and laceratéd, and gave it as their opinon that Annie Horvatich died from the effect of peritonitis, caused by the rupture and laceration of the uterus. They also agreed that it was not necessary to cause Annie Horvatich to abort or miscarry in order to save her life, and they each expressed the opinion she had been pregnant about three months' at the time the injuries which they discovered were inflicted upon her; that such injuries were caused during life and that she lived a few days after they were inflicted. ’
Plaintiff in error testified that Annie Horvatich came to her place on Thursday evening, May 2, and that she died Monday morning, May 6. She said slie_ made an examination of her private parts upon the evening that she came and found her flowing; that Annie Horvatich told her that she had not “come around,” and that she had been to see a doctor on the south side and that he had brought her around. She testified she found no rupture of the uterus or othen. derangement of the private parts, other than an offensive flow therefrom; that she diagnosed the case as pneumonia, "and insisted Annie Horvatich died of pneumonia and bronchitis. She states Annie Horvatich paid her $15; that she called Dr. .Rasmussen, who she admitted she knew had -been charged by the public officials as an abortionist.
The State introduced in evidence several advertisements' which the plaintiff admitted that she had caused to be published in the Chicago daily newspapers, samples of which are as follows: Prom the files of the Chicago Daily News of July 24 and July 22, 1899, reading as follows: “Dr. Louise Hagenow; licensed physician; expert; twenty-seven years; female diseases; a new scientific, painless method; no operation; good results; 330 East Division street, near Wells; 10 to 4, 7 to 8.” Also from the Record-Herald of March 13, 1905, as follows: “Ida VonSchultz, 480 North Clark street; regular graduate; expert in obstetrics, female complaints, etc., and all difficult cases; twenty-five years’ experience; ladies call or write; near Division; telephone, Dearborn 2.” And in the same column, from the Record-Herald of March 13, 1905, and right under that advertisement: “Dr. Lucy Hagenow, licensed physician; specialist in tumors, irregularities, etc.; new scientific, painless method; no operation; success guaranteed; twenty-eight years’ experience; private sanitarium, 310 W. Madison.” Also from the Record-Herald of March 5, 1905, and from the Chicago Examiner of March 13, 1905, as follows: “Dr. Lucy Hagenow, licensed physician; specialist; all women’s troubles; new scientific, painless method; no operation; success guaranteed; twenty-eight years’ experience; confinement home, 310 West Madison street.”
The State, over the objection of the plaintiff in error, called police officer Frank Snyder, who testified, in substance, that on August 31, 1899, the defendant, who was then known as Louise Hagenow, was brought into a room at St. Elizabeth’s’ Hospital by two detectives. Marie Hecht was lying in bed in the room at the time. The witness wrote out a statement that Marie Hecht there dictated. Marie Hecht signed it, and after it had been read aloud Mrs. Hagenow went to the bedside of the girl and said, in German, “Is it as bad as this, my poor child?” The victim answered, “Yes, see what you have done!” Mrs. Hagenow said, “Why, you had a flow when you came to me, did you not?” Marie said, “I didn’t have no flow.” Mrs. Hagenow said, “Yes, you did; tell these people now. you did have a flow.” Marie said, “No, I didn’t have a flow and I won’t tell the people that I had a flow.” This conversa-' tion took place in German and the witness understood German. The witness stated that on seeing the document his recollection was refreshed as to what the conversation was and as to what he wrote down, and that the words in the document were uttered there in the presence of the defendant, Hagenow, as he had stated. He could not repeat the identical words without having the document before him. The court' then allowed the statement to be read. Witness further testified that Marie Hecht is not now living; that he saw her dead in the morgue two days following the making of .the statement; that right when the statement was signed Marie Hecht said, “That is the woman who performed the abortion.” After the document was signed and the conversation related as having taken place in German, Louise Hagenow did not say anything more in the presence of Marie Hecht. This statement shows that for the sum of $70 Dr. Hagenow performed an illegal operation for Marie Hecht.
In connection with the testimony of officer Snyder the court admitted in evidence the statement of Marie Hecht, the plaintiff in error, which, omitting the formal parts, is as follows:
“I am twenty-three years old,'and will be twenty-four years on the tenth day of November. I was born in Villason county, Luzerne, Switzerland, where my parents still reside. I left Germany four years ago. In January of this year I became acquainted with John Schockweiler, a young man about twenty years old, who is employed in a freight house on. the south side and resides at. 140 Orleans street. I had sexual intercourse with him for about five or six times and in the month of May I noticed I was pregnant, and on Thursday, at 12:30 P: M., August 24th, 1899, I went of my own free will to visit Dr. Louise Hagenow, at 330 Division street. She laid me on a lounge and examined me, and after the examination she said she would relieve me of the child for $75, and that she would take it from me with instruments. ‘No,’ I said, ‘No; I cannot afford to pay you $75 for the work; I’ll give you $70.’ Then she agreed. I then gave! her $70. She first laid me on a lounge and began to use an instrument on me. During that time I suffered considerable pain. I remained on the lounge for about twenty minutes. Then the doctor made me get up and walk about the room. I was so weak I could not walk very long. Then I went and laid down on the bed. The doctor then came in and began to use instruments again. I felt as though I was being cut to pieces, and at about 5:3o P. M. she took the child away from me. I suffered great pain, and the following day, Friday, August 25th, I left and took a fear for 941 North Clark street,—a friend of mine named Spitzer,—where I remained until Monday morning at ten o’clock, August 28th, when I left and was brought to the St. Elizabeth Hospital in a carriage.
“If I die I desire that .all costs and expenses attending my funeral expenses shall be paid out of my savings, which amount to $300, and which is in the Germania Safe Deposit Vaults, corner of Clark and Germania place. Mr. Gomme, my employer, still owes me $76 for services rendered after all the aforesaid expenses are paid. I desire that the balance of my money be paid to my parents, John and Anne Hecht, of Villason county, Luzerne, Switzerland. I now see the woman standing at my bedside who performed the abortion.”
The State, over the objection of the plaintiff in error, called Dr. A. M. Corwin, who testified, in substance,' that between ten and fifteen years ago he was called, to the office of Dr. Hagenow, at the corner of West Madison and Hoyne streets, about eight o’clock in the evening. The defendant said to him at that time, “I am in trouble.” The substance of what she said was that she was in trouble and needed aid. At that time her arms were bare to the elbows. Her arms and hands'were bloody. She motioned Dr. Corwin to an adjoining room. There he found another woman, whose name he does not remember'. There was a strong smell of ether in both rooms. He also saw a woman, apparently well nourished and healthy-looking, in bed. A sheet was covered over her. The ether was much stronger in that room than in the outer room. He took the sheet down and saw a mass of intestines upon the bare thighs. Upon further examination, after calling another doctor on the telephone, they found that the intestines were protruding from the vagina through a large rent from the' abdominal peritoneal cavity. The uterus to the sense of touch seemed normal. They at once replaced the intestines, which were protruding from the vaginal tract, and told Dr. Hag-enow she ought to get the case to the hospital, because death would follow shortly. She agreed to do that.
Also sergeant of police George W. Pearsall, who testified, in substance, that he knew plaintiff in error under the name of Ida VonSchultz in February, 1906. He saw her then at 480 North Clark street, second floor. There were signs in the front of the building, “Dr. Lucy Hagenow, Physician and Midwife,” and “Dr. Ida VonSchultz, Physician and Midwife.” Witness met defendant at the door and asked if she was Dr. Hagenow. She said she was not. When asked who she was, she answered, “I am Dr. Ida VonSchultz.” The witness took Dr. Hagenow to the Passavant Hospital about five o’clock on the afternoon of February 20, 1906, and brought her into the presence of Miss Lola M. Maddison, of Salt Lake City, who was a patient there and a very sick woman. Lola Maddison was in bed. Captain Healy and the witness and the defendant' were there. He asked Lola, “Do you know this woman?” She said, “Oh, yes; that is the doctor.” The captain asked, “Is that the doctor who performed the abortion on you?” She said, “Yes.” She wás asked, “Where did she perform the abortion?” and answered, “In her office, on Clark street.” Witness asked her if it was 480 North Clark street. She said “Yes.” Dr. Hagenow stepped up to the side of the bed, rubbed the girl’s face with her hand, and said, “Don’t talk too much, my girl; it won’t do you any good.” She then stooped over and whispered something to the girl, but the witness did not hear what it was.
Also Mrs. Eva Herndon, a private investigator for the United States postal authorities, who testified, in substance, that she had a talk with Mrs. Hagenow at her home on January 22, 1907. “I asked her her charges for a married woman who was pregnant two months, and she said $50, and she would take care of her during the time she was there, which would be something like eight days, and that she did her work by applications. That is about all the conversation.” The witness further said that on January 15 she had seen the defendant, who at that time responded to the name of Ida VonSchultz, and at that time the witness asked her what her charges would be to take care of a young lady and board her who was two months pregnant. She said it would be $35 if she only gave her the treatments and did not board her; that a great many women imagined they were in that condition when they only had other female troubles; that she had a woman that morning who was in the same condition and was not pregnant. That is about the amount of the conversation at that time.
On cross-examination the plaintiff in error admitted she was involved in the death of Hannah Carlson, who died from abortion.
The first contention made by the plaintiff in error is that the court erred in admitting evidence of plaintiff in error’s connection with crimes not connected with the offense charged in the indictment. The law is well settled in this as it is in all jurisdictions where the common law is in force, that .as a general rule evidence of a distinct, substantive offense cannot.be admitted in support of another offense. (Farris v. People,
In some jurisdictions proof that the defendant had been guilty of causing criminal miscarriages or abortions upon other pregnant women than the one named in the indictment has been held proper upon a trial against the defendant upon an indictment of this character, (People v. Sessions,
The statute under which the indictment is framed reads as follows: “Whoever, by means of any instrument, medicine, drug or other means whatever, causes any woman, pregnant with child, to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother’s life, shall be imprisoned in the penitentiary not less than one year nor more than ten years; or if the death of the mother results therefrom; the person procúring or causing the abortion or miscarriage shall be guilty of murder.” (Crim. Code, sec. 3, p. 665.)
In Beasley v. People,
In the Scott case the evidence tended to show that the defendant operated upon the prosecutrix with instruments three times,—once about October 15, and again just before November 15, and again subsequent to November 15,— and the defendant contended that the court admitted, in permitting proof of the three operations, evidence of three distinct offenses. The court, on page 213, said.: “We think the testimony was competent. Acts of the defendant tending to show his knowledge of a woman’s pregnancy and his intention to commit an abortion upon her may be proved, whether they were prior or subsequent to the particular act charged in the indictment.” In the Hagenow case, on page 552, will be found the following advertisement: “Dr. Louise Hagenow, licensed physician; female irregularities; new scientific, painless method; good treatment; good results; expert, twenty-seven years; private home; 330 E. Division, near Wells,” which the defendant admitted she caused to be published in one of the daily papers in Chicago. This advertisement was set out in that part of the' opinion which considers the question whether the evidence was sufficient to sustain the verdict, and the court apparently gave great force to its weight on the proposition that it showed guilty knowledge and guilty intent on the part of the defendant, and tended to establish that she did not commit the abortion upon Marie Hecht with a view to save her life. And in the Clark case proof was introduced by a number of witnesses that at different times preceding the commission of the offense charged in the indictment, the defendant, Ida Clark, had solicited the patronage of pregnant women and held herself out as being able and willing to commit abortions or commit miscarriages upon them by means of instruments and medicines. The court, on page 563, said: “On a trial for an offense such as charged in this indictment, intent is an essential ingredient, and it is competent to show the declarations of one on trial for procuring an abortion, to the effect that she was in the habit of performing or had solicited such work.”
The contention is made that the Clark case differs upon its facts from the case at bar, and that what was said in that case should not be applied in this case. The evidence in that case was held admissible on the ground that it showed a willingness and ability upon the part of the defendant to perform the acts charged against her in the indictment, and that such evidence established, or tended to establish, guilty knowledge or intent upon the part of the defendant,—and such was the object of the testimony to which objection is made in this case. Furthermore, the Clark case cites with approval the case of People v. Sessions,
In the Sessions case the testimony of four of the People’s witnesses relating to the defendant’s possession of instruments to produce an abortion and her use of them and her knowledge upon the subject, and that she had held herself out for the performance of such service, with the instruments, for hire, was given on the part of thé prosecution. It consisted of conversations the defendant had with these four persons, extending through a period of four years previous to the death of Mrs. Peck, the woman whose death she caused, wherein the defendant stated to one that she had the instruments with which to produce abortions, had herself got rid of a number of children, and showed her the instruments, at the same time saying to the witness if she wanted any help she could help her. To another she stated that she had committed abortions and could do it again; that she had the instruments to use in doing it. To another she stated her terms for performing such service, which she then proffered to the witness, who was in the family way, and told her she had the instruments for the purpose. This testimony was all objected to by counsel for the defendant. The court, in holding the testimony admissible, on page 601 of the opinion, said: “It is true, as claimed by him, that the general rule, as stated by Mr. Justice Christiancy in People v. Jenness,
In People v. Seaman, supra, the defendant was charged, jointly with one Alice Lane, with having committed an abortion upon one Emily Hall, at the house of Alice Lane. Upon the trial a witness testified, on behalf of the State, that she gave birth to a child in the Lane house on Tuesday evening, January 29, 1895. Another witness testified that respondent operated upon her with instruments at the Lane house on January 23, 1895, and that she was four months gone at the time. Another witness testified that respondent operated upon her at the Lane house in June, 1894, and took from her a three and one-half month foetus, and that she operated on her again in October, 1894, at the same place, and took away a foetus six weeks old. The court, in a very elaborate’ opinion by Judge McGrath, held this evidence competent. In the Seaman case the defendant denied that he used any means upon Emily Hall to cause her to miscarry or abort, as the plaintiff in error denies in this case that she used any means upon Annie Horvatich to cause her to miscarry or abort, but claimed Emily Hall aborted or miscarried as the result of an ocean voyage, while the plaintiff in error claims Annie Horvatich aborted or miscarried in consequence of the criminal act of some doctor on the south side before she came to her house. The only difference in the facts of the two cases is, that the defendant, in the Seaman case admitted Emily Hall gave birth to a child while he was treating her, while the plaintiff in error claims Annie Horvatich miscarried or aborted before she came to her place. Counsel for plaintiff in error seek to draw a distinction between these cases. We are of the opinion, however, the cases cannot be differentiated. In the Dale case the defendants were charged with attempting to cause the miscarriage of one Annie Elizabeth Smith by the use of a quill. It was said by counsel that the quill might have been used to open an abscess and the subsequent miscarriage been an accidental result, and it was held, to rebut any presumption that the miscarriage was accidental as a result of the use of the quill, it was admissible to prove that the defendants had caused, with a similar instrument, miscarriages upon other occasions upon other women.
The court, at the instance of the People, instructed the jury that the evidence hereinbefore referred to was proper to be considered by them solely for the purpose of determining the question whether the plaintiff in error had intent and guilty knowledge, and whether she had the means and opportunity to perform the operation and inflict the wounds in the private parts and body of Annie Horvatich, as alleged and claimed in this case. If the testimony was admissible for the purpose of showing guilty knowledge and intent on the part of the plaintiff in error and that she had the means and the opportunity to commit the offense, it was competent, regardless of the fact that it, when properly admitted, might have the effect to prejudice the jury against the plaintiff in error. If evidence is admissible under any issue in a case or for any purpose it should not be excluded. (Ruggles v. Gatton,
In Baker v. People,
After a most careful consideration of the question raised by the plaintiff in error as to the admissibility of this class of evidence in this case, we are constrained to hold that the court did not err in admitting the evidence of the plaintiff in error’s connection with other offenses similar to the one with which she was charged and upon trial under this indictment, and while the case of the plaintiff in error may have been prejudiced by the admission of such evidence, such fact, if true, is not the fault of the law, but the misfortune of the plaintiff in error in finding herself surrounded by the facts and circumstances, upon her trial, offered in proof, for which facts and circumstances she alone, and not the State, was responsible.
It is also urged that the court erred in admitting in evidence the dying declaration of Marie Hecht, and authorities are cited to the effect that a dying declaration is only admissible in evidence where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the declaration. The declaration signed by Marie Hecht was prepared, signed and read aloud in the presence of the plaintiff in error, and she made no denial of the truth of the facts contained in the statement, and the statement was admitted in evidence, not as the dying declaration of Marie Hecht, but as the admission of the plaintiff in error for the purpose of showing the plaintiff in error’s connection with the operation which caused the death of Marie Hecht. We do'not think the court erred in admitting in evidence said statement.
It is also contended that the court erred in permitting the physicians who made the post mortem examination to give their opinion as to the cause of the punctures and lacerations found in the uterus of Annie Horvatich. The physicians discovered, upon the post mortem examination, that the uterus was punctured and lacerated, the top of the uterus being torn or punched off, and they, in effect, stated that they were of the opinion that said puncture, tear and laceration were caused by some hard substance being forced through the uterus, which had been inserted through the mouth of the womb of Annie Horvatich during life, which caused peritonitis, from the-effect of which Annie Horvatich died. The question what caused the death of Annie Horvatich was clearly a question for opinion evidence by medical men, and we think it was proper for the physicians who examined the uterus to state to the jury the conditions which they found, and it appearing that it was ruptured, torn and lacerated, how, in their opinion, such ruptures, tears and lacerations were made. In Village of Chatsworth v. Rowe,
The case of Illinois Central Railroad Co. v. Smith,
It is further contended that the court erred in giving to the jury the People’s sixteenth and seventeenth instructions, on the ground that they each omit, in stating the facts which must be shown to entitle the State to a conviction, the element that Annie Horvatich was pregnant. These instructions read as follows:
16. “The court instructs you that if you shall find, from the evidence in the case, beyond a reasonable doubt, that Annie Horvatich died from.the result of an operation and that the operation was performed with the intent to produce an abortion on her, and that the operation was performed by the defendant, Lucy Hagenow, otherwise called Louise Hagenow, otherwise called Ida VonSchultz, or by any person acting under the defendant’s direction, or if the defendant aided, abetted and encouraged the operation in any manner, and that the operation was not done as necessary to preserve the life of Annie Horvatich, then in such case the court instructs you, that, as a matter of law, the defendant is guilty of murder in manner and form as charged in the indictment.
17. “The court instructs you that if you shall believe, from the evidence in the case, beyond a reasonable doubt, that the defendant, Lucy Hagenow, otherwise called Louise Hagenow, otherwise called Ida VonSchultz, inflicted the injury alleged in the indictment, in the private parts and body of Annie Horvatich, with an intent to cause Annie Horvatich to abort and miscarry and not as necessary to preserve her life, and that such injury resulted in the death of Annie Horvatich, then in such case the court instructs you, as a matter of law, that the defendant is guilty of murder in manner and form as charged in the indictment.”
If those instructions stood alone there would be much force in the contention of the plaintiff in error, but when they are considered in connection with the other instructions given to the jury we do not think they worked any harm- to the plaintiff in error. The court, by instruction 35, informed the jury “that before the defendant in this case can be convicted each one of the following propositions must be proven beyond a reasonable doubt: (i) That Annie Horvatich was pregnant; (2) that while Annie Horvatich was pregnant she aborted or miscarried; (3) that said abortion or miscarriage was produced by criminal means; (4) that said criminal means were employed by the defendant, or that she aided, abetted and encouraged the employment of such means; (5) that said Annie Horvatich died as the result of said abortion and miscarriage. If the jury have a reasonable doubt of the truth of any of the foregoing propositions they must find the defendant not guilty.” By that instruction the court clearly informed the jury that they could not convict the plaintiff in error unless it had been established, beyond all reasonable doubt, that Annie Horvatich was pregnant. The instructions complained of did not direct the jury, in case thejr found the facts stated therein to be true, to find the plaintiff in error guilty. They merely stated that those facts, if proven, constituted the crime of murder. While one instruction may omit some needed qualification and appear to be misleading when considered alone, it may not be misleading or improper when considered with the other instructions, and it is sufficient if the instructions, taken as a whole, present the law to the jury with substantial correctness. (Toluca, Marquette and Northern Railway Co. v. Haws,
It is also urged that the court erred in refusing to give to the jury the form of a verdict for manslaughter. The jury had the power, under the indictment, to find the plaintiff in etfror guilty of manslaughter, (Earll v. People,
It is also insisted that the State’s attorney exceeded his privilege in the argument to the jury and in the cross-examination of the plaintiff in error as a witness, in this: that he stated to the jury the plaintiff in error had publicly and notoriously been engaged in the business of murder. in the city of Chicago for a number of years and urged the jury to send her to the penitentiary for her natural life, and that upon the cross-examination of the plaintiff in error he asked her if the pictures of the people who are dead (referring, apparently, to Marie Hecht and others,) did not at times come to her mind. The State’s attorney, in the argument to the ju^y, should confine himself to a discussion of the facts disclosed by the evidence. In Crocker v. People,
It is finally urged that the verdict is not supported by the evidence. We have fully set forth the facts in this opinion disclosed by this record,^ and we feel justified in saying, without further discussion, that in our opinion they-establish the guilt of defendant beyond all reasonable doubt.
We have given this record the patient examination which the importance of the cáse to the State and to the plaintiff in error demands, and have found no error therein which would justify this court in reversing the judgment of conviction rendered by the criminal court against the plaintiff in error. .
The judgment of the criminal court will be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
In jurisdictions other than ours, the question whether, upon a trial for murder where death results from abortion, evidence of a previous unlawful abortion or abortions committed by the defendants upon a woman or women other than the deceased may be admitted for the purpose of showing the unlawful intention of the accused in doing the alleged acts charged by the indictment, is one upon which the adjudicated cases are in conflict. In our own State the proposition has been determined against the contention of the prosecution by. the case of Baker v. People,
The majority regard the doctrine there enunciated as •repudiated by the later case of Scott v. People,
The evidence was there held to be competent because “the three acts proven in this case were not unconnected but were parts of one transaction. They all together constituted but one attempt to procure the same abortion.” How can it be said that this holding repudiates the doctrine of the Baker case, when that doctrine is not mentioned, when the Baker cáse is not alluded to, and when there is nothing whatever in the later case inconsistent with the earlier’ case or the doctrine thereof, and how can it be said that the Scott case justifies the admission of evidence tending to show that the accused has committed criminal abortions upon women other than the deceased, when that decision is expressly placed upon the ground that the different acts there proven were all part of the same transaction, being designed to produce one and the same abortion ? The majority opinion herein is the first departure from the law as stated in Baker v. People, supra.
It is true that the evidence in the case at bar very .strongly indicates the guilt of plaintiff in error. The question for us is not whether she is guilty, but, conceding her guilt, can the judgment be affirmed without destroying one of the safeguards heretofore deemed necessary and proper in this Sthte for the protection of persons charged with crime? To this the only answer must be a negative. If in every case where a revolting crime, such as this, has been committed, and where the evidence strongly indicates the guilt of the accused, wq disregard a salutary rule adopted to prevent the conviction of innocent persons in order that affirmance may be had, this court will, in effect, become a court, of first instance instead of a court of review, and our decisions will depend, not upon the question whether prejudicial error has intervened and whether the prisoner has enjoyed the fair and impartial trial guaranteed by the law, but upon our own conclusions in reference to the sufficiency of the evidence to show guilt.
It is highly important that the guilty be punished, but it is far more important that barriers erected by the law and designed for the protection of the innocent should not be broken down by this court, even for the purpose of affirming the conviction of a person who appears from the evidence to be guilty. Laws established to prevent the conviction of innocent persons are not to be disregarded by us merely because we may believe, upon a consideration of all the evidence, that the accused in any particular case is guilty. ' •
It is true, as a general proposition, that where it appears from the evidence, beyond all reasonable doubt, that the prisoner was guilty and that an error occurring in the trial court was harmless, there should be no reversal. Error, where shown, however, is presumed harmful, and the burden is then upon the party seeking to avoid its effect to show that no injury resulted therefrom. In this particular .case, even conceding the guilt of the accused, it can not be said that the improper evidence was harmless. • The jury could have fixed the defendant’s term of imprisonment at any period not less than fourteen years. They did fix it at twenty years. Can it be doubted that the testimony wrongfully admitted, tending to show that she was an old and hardened offender, who had repeatedly violated this particular law, added to the length of the sentence?
In Farris v. People,
The majority opinion escapes the effect of this forceful reasoning only by overruling a decision which has stood unquestioned as the law of this State since 1883. Such a radical course should not, in my judgment, be taken mérely to avoid a reversal of this judgment and a re-trial of the prisoner. Baker v. People, supra, which has been approved in Bishop v. People,
The insistence of the prosecutor that proof of previous unlawful abortions produced by the accused was necessary for the purpose of showing that the abortion in question was not committed as necessary for the preservation of the mother’s life was apparently.a mere subterfuge, made use of for the purpose of introducing incompetent proof that would seriously prejudice the cause of the accused. The evidence showed plainly that the deceased was a strong woman and in good health when she placed herself in the hands of plaintiff in error. She had previously borne three children. The three physicians who conducted the post mortem testified that it was not necessary to cause her to abort or miscarry in order to save her life. This established the fact that the abortion was not necessary for the preservation of the life of the mother, which is all that is necessary to satisfy the statute in that regard, (Beasley v. People,
There is set out in the majority opinion the greater part of a dying declaration made by Marie Hecht, deceased, which was admitted in evidence, and which tended to show that her death was caused by an abortion committed upon her by plaintiff in error. The first portion of the statement so admitted was in the words following: “I, Marie Hecht, now lying dangerously ill at the St. Elizabeth’s Hospital, and believing I am about to die, make this, my ante-mortem statement.” These words immediately preceded the language which is found in the majority opinion and which is there quoted from the same declaration. The admission of the statement is justified by the majority on the theory that plaintiff in error made no denial of the truth thereof when it was read in her presence at the time it was signed by Marie Hecht. In addition to a general objection to the admission of this dying declaration, the plaintiff in error, after the declaration was admitted in evidence, moved to strike out the portion thereof which I have quoted, and this motion was denied. I' think it was improper to admit the dying declaration for any purpose, but, in any event, the portion thereof at which the motion was aimed should not have gone to the jury. It was undoubtedly regarded by the jury as adding weight to the declaration, and it does not remove this difficulty that the jury may have been otherwise advised by proof that Marie Hecht was, at the time of making the statement, near unto death. The words just quoted were particularly prejudicial, because the jury were thereby informed that the statement was made by Marie Hecht when she knew that she was confronted by certain and immediate death; and they would be more inclined to regard her statement as true than they would if it did not appear to them that she knew she was about to die at the time she made it. It cannot be contended that these words had anything to do with any implied admission made by the plaintiff in error, or that they threw any light upon or gave any force or significance to her silence at the time she heard the declaration read.
I am also of opinion that the sixteenth and seventeenth instructions given at the request of the People were fatally defective, and that the words of the prosecutor in cross-examination and his remarks in argument were of that intemperate and improper character which forbids affirmance.
The judgment should be reversed and the cause remanded for a new trial.
Farmer and Vickers, JJ.: We concur in the foregoing dissenting opinion of Mr. Justice ScoTT.