| Wis. | Jun 19, 1918
Lead Opinion
The defendant insists that the trial court erred in submitting the question of his guilt or innocence to
• The evidence adduced shows that the defendant was on July 27, 1917, consulted for treatment by an unmarried woman of the age of twenty years who had be.en pregnant for a period of from two to three months. The defendant testified that the woman was then in a cyanosed condition and in a critical state of health which he attributed-to her having taken a. large quantity of Chichester pills, and that he agreed to give her medical treatment. The evidence of the woman tends to "show that defendant at this interview consented to treat her upon condition that she pay him'$50 in advance and that there was some conversation as to the necessity of preventing publicity of the fact of her condition and his treatment of her under these circumstances. The defendant testifies that whatever was said by him on the subject was in response to her request to protect her in her unfortunate situation, while the woman’s testimony is in substance that defendant suggested absolute secrecy for his protection against unjust prosecution for rendering her medical aid and assistance in her affliction. By appointments the woman called at defendant’s office on the third day after the first interview and paid him $(50, or $35 as defendant testifies. She made a third call three days after the second one. On both of these last occasions defend
To ascertain the true significance of all the facts and circumstances shown by the evidence requires a consideration of it in all its details that cannot be fully restated here. The proper 'inference from the evidence is necessarily dependent upon the credibility and weight which is given to the statements of the various persons who testified. The case is therefore one where the jury and the trial court, who saw the witnesses on the stand and observed them while testifying, could much better ascertain the probative force of the evidence than can be ascertained by a review of the printed record. The facts and circumstances shown are, as to their significance and-7 the inferences to be drawn therefrom as to defendant’s guilt or innocence, peculiarly within the function to be exercised by the triers of fact. The offense charged involves the inquiry, With what intent did the defendant give this woman the treatment he testified to ? Such intent is a fact which must be ascertained from a consideration of the facts and circumstances which throw light on defendant’s conduct and acts. If he had the felonious intent of producing a miscarriage,, then guilt is established though he did not in fact procure a miscarriage. An attentive study, of the evidentiary facts in all their bearing upon defendant’s acts in relation to the charge preferred against him has persuaded us of the correctness of the conclusion of the jury and trial court. We are of the opinion that the evidence amply justifies and sustains
It is urged that the court erred in applying the following provision of sec. 1435¿, Stats., and adjudging a revocation of defendant’s license to practice surgery and medicine:
“.. . If any person licensed or registered by said board shall be convicted of any crime, committed in the course of his professional conduct, the court in which said conviction is had shall in addition to any other punishment imposed pursuant to law revoke said license or certificate.”
It was held in State v. Lewis, 164 Wis. 363" court="Wis." date_filed="1916-12-05" href="https://app.midpage.ai/document/state-v-lewis-8192216?utm_source=webapp" opinion_id="8192216">164 Wis. 363, 159 N. W. 746, that the effect of this statute “is simply to give, as an incident to such conviction, power to the court in the criminal proceeding to do directly and forthwith what might be done in subsequent civil proceedings.” We are persuaded that this interpretation of the statute is correct, and hence the contention of the defendant that it provides additional criminal punishment and that it constitutes cruel and unusual punishment is' without merit. The term “crime” as used in this provision was manifestly employed to embrace the violation of any penal law of the state, and clearly includes all felonies and misdemeanors under the law of the state committed by the offender in the course of his professional conduct. The terms of the statute leave no room for different interpretation of the word “shall” in the provision that the court, upon record of conviction, “shall” revoke the license or certificate of the person convicted. It is apparent that the legislature intended that a criminal conviction of any such licensed or registered person shall be deemed to be a conclusive test of unfitness of such person to further continue in the practice of his profession and made it mandatory on the court to revoke such license. This is properly a legislative question. “The nature and extent of the qualifications required must depend primarily on the judgment of the state as to their necessity.” Dent v. West Virginia, 129 U.S. 114" court="SCOTUS" date_filed="1889-01-14" href="https://app.midpage.ai/document/dent-v-west-virginia-92392?utm_source=webapp" opinion_id="92392">129 U. S. 114, 9 Sup. Ct. 231; State v. Schaefer,
An exception is urged to the court’s additional and unrequested instruction to the jury upon their return to the court room after having deliberated on the case twenty-four hours, upon the question of the defendant’s use of instruments to produce a miscarriage. The court stated to them:
“You are not concerned upon that branch of the case with the question of whether he did actually produce a miscarriage or not. The question is: ‘Did he use these instruments with the purpose and with the intent of producing a miscarriage.’ ”
The instruction embodies a correct statement of the law applicable to the case and was given in a proper manner and on an appropriate occasion. - The record discloses nothing to indicate that the defendant could have been prejudiced thereby in any respect. The record also shows that the court accorded defendant’s counsel full privilege to present the grounds upon which it is claimed the evidence fails to sustain the verdict in the case and to submit a brief on the question.
Evidence was received tending to show that the defendant was instrumental in not having the woman taken to the hospital for care and treatment; and Dr. Sommers, who examined and treated the woman after defendant had had her in charge, was permitted to give in evidence his opinion, based on her condition and age, that a miscarriage does not often occur in such cases unless artificial means are. employed. This evidence was relevant to the issues being tried and tended to aid the court and jury in determining the facts at issue. No grounds are shown indicating that its reception was prejudicial to the defendant.
The reception in evidence of a statement made by the woman to her sister in the absence of defendant, concerning her visit to the defendant’s office, relates only to the fact that she had visited defendant to secure treatment for relief concerning her menstrual troubles. This evidence deals with
The proceedings on the trial disclose that the accused had a fair trial, and the judgment of the circuit court must stand.
By the Court.- — -The judgment is affirmed.
Dissenting Opinion
(dissenting). A consideration of the record convinces me that the testimony falls short of measuring up to the salutary rule that it should exclude a reasonable doubt as to defendant’s guilt.
The unfortunate girl in this case had commenced taking pills for the avowed purpose of starting menstruation, and that meant, beyond question, an abortion. She had had pains and been sick, for a day or two at least, before her first visit to defendant, and on the preliminary examination she said that she went to his office to get help to relieve her from the pain she was in. The physician who subsequently attended her at the hospital testified for the state and said that if a miscarriage was in process even at that early stage of pregnancy it would be accompanied by labor pains.
There is an entire absence of any evidence as to when the foetus was expelled, and it is therefore mere conjecture that it happened subsequent to any examination or treatment by the defendant. If it was before, then of course at the time she visited him she was not pregnant, within the terms of the statutes.
The physician who removed parts of the afterbirth, or
There does not seem to be a sufficient foundation in this case upon which a verdict of guilty should stand, and it is because it has been clearly declared by the legislature, by sec. 4719, Stats., as well as such decisions as Prinslow v. State, 140 Wis. 131" court="Wis." date_filed="1909-06-03" href="https://app.midpage.ai/document/prinslow-v-state-8189617?utm_source=webapp" opinion_id="8189617">140 Wis. 131, 121 N. W. 637; Abaly v. State, 163 Wis. 609" court="Wis." date_filed="1916-06-13" href="https://app.midpage.ai/document/abaly-v-state-8192127?utm_source=webapp" opinion_id="8192127">163 Wis. 609, 158 N. W. 308; B- v. State, 166 Wis. 525" court="Wis." date_filed="1918-01-05" href="https://app.midpage.ai/document/b-v-state-8192522?utm_source=webapp" opinion_id="8192522">166 Wis. 525, 166 N. W. 32; Kuhl v. State, ante, p. 495, 167 N.W. 743" court="Wis." date_filed="1918-05-21" href="https://app.midpage.ai/document/kuhl-v-state-8192636?utm_source=webapp" opinion_id="8192636">167 N. W. 743, that in such cases of vital importance to a defendant he is entitled to the deliberate opinion of the court of last resort upon the facts as well as the law, that I am impelled to register this dissent.