26 N.Y.S. 390 | N.Y. Sup. Ct. | 1893
The defendant in this prosecution was indicted by the grand jury of Kings county in October, 1891, for the crime of abortion. The indictment contained two counts; one charging the use of instruments for the procurement of an abortion, and one charging the prescription and administration of drugs to procure the same result. The indictment charges the commission of the offense on the 9th day of December, 1889. The defendant was tried at the court of oyer and terminer in Kings county in February, 1893, and the jury rendered a general verdict of guilty.
A careful examination of the testimony leaves no reasonable doubt of the guilt of the defendant. While it is true that the evidence is circumstantial, and leaves the question of guilt to be determined by inferences drawn from established facts, yet the facts proven are not only entirely inconsistent with the innocence of the defendant, but they can be reconciled upon no theory except that of his guilt. The law under which the defendant was indicted and convicted is this:
“A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child with which she is pregnant, either, first, prescribes, supplies, or administers to a woman, 'whether pregnant or not, or advises or causes a woman to take any medicine, drug, or substance; or, second, uses, or causes to be used, any instrument or other means; is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year.” Pen. Code, § 294.
Under this statute the crime is perpetrated either by prescribing, supplying, or administering to a woman, whether pregnant or not, any medicine, drug, or substance, with intent thereby to procure a miscarriage, or advising or causing a woman to take any medicine, drug, or substance, unless the same is necessary to prolong the life of the woman, or the child with which she is pregnant; or, second, using, or causing to be used, any instrument or other means to accomplish the same result. In this case the evidence tended to prove the defendant guilty, under the first part of the statutory inhibition, of prescribing medicine and drugs with intent to procure a miscarriage. It will be sufficient, therefore, for the justification of this conviction, if the evidence was sufficient to prove that the defendant gave the prescription set out in the case for the purpose of causing a miscarriage, because the second count in the indictment contains that charge, and the verdict was general.
An outline of the material facts is this: On the 8th day of November, 1889, Howard S. Terrell went to the office of the defendant, who was a practising physician in the city of Brooklyn. Terrell was accompanied by a young woman named Lillie L. Cook, and the object of his visit was to procure an examination of the young woman by the defendant, to determine whether she was pregnant. The visit had been previously arranged between Terrell and the defendant, except that no time for it had been specified. The defendant made an examination of the girl, pronounced her pregnant, and advised Terrell to marry her. For that examination the defendant charged and received §25. Three days after that, and on the
“The girl said, ‘You don’t remember me?’ And I says, ‘No; who are .you?’ And she says, T am the girl that Terrell had at your office.’ And I says, ‘What is your trouble?’ And she said, T am all through my trouble.’ When did it occur?’ And she says, ‘Last night.’ ”
The girl died on the 25th day of December, 1889; and, in the evening before her death, Dr. Topham, the family physician, was called in, at the request of the mother of the girl, and the following conversation ensued between him and the defendant, according to-the testimony of Dr. Topham:
“Q. What was the conversation, please? A. He (Van Zile) told me that he had been called into the case, I think the Thursday previous, and that she had been getting rapidly worse, and was now in a very bad condition. He did not seem to understand what the matter—what the trouble—was. ■Q. Did he say so? A. He said so.”
On the night of the girl’s death the defendant fled from the city,. and remained absent about three months; but before he left he called upon Munson, the druggist, and informed him that the gill had died, and he thought, if Munson would lend him $250, he could pay the funeral expenses, and satisfy the mother, and settle with her in that way.
This general statement is amply sufficient to show that the jury was justified in finding the defendant guilty of making the prescription with intent to produce a miscarriage. In fact, the guilt of the defendant became so evident upon an examination of the record that no doubt remains upon that subject.
It becomes necessary now to examine the legal questions raised by the defendant at the trial, and again upon this appeal.
When the assistant district attorney was about to open the case .for the people, the counsel for the defendant requested the court to direct him to omit from his opening any reference to any former trial of any one in respect to this case. The request was denied, and the counsel for the defendant excepted. Then the assistant ■district attorney proceeded with the opening, and stated that the ■defendant had been jointly indicted with Terrell, and upon the trial ■of the latter the defendant became a witness for him; that the indictment upon which Terrell was tried contained but one count.
Neither was it erroneous to take proof of the death of the girl from miscarriage. It was a part of the history of the cáse, and may well have had a legitimate bearing upon the effect of the examination of the girl by the defendant. He said in his testimony that he used a sponge, and the effect of such use was in question all through the trial. Even the disclaimer of the assistant district attorney, for which the defendant contends, does not include the use of a sponge. But the disclaimer seems to have been misunderstood. The disclaimer was of any insistence that .the abortion -was produced by a puncture of membranous sack of the womb. A physician was permitted to say that he would look for a miscarriage if- the whole prescription of the defendant was taken at one dose, but that was after he had said the doses prescribed .were too small. We do not think the testimony erroneous. Any testimony respecting the effect of the medicine prescribed by the defendant was relevant.