*1 STRAUP, J., FOLLAND, HANSON, C. EPHRAIM MOFFAT, JJ., сoncur.
STATE v. CRAGUN (2d) No. 5116. Decided December 1934. P. [38 1071.] Woolley Holther, Ogden, Joseph Chez, Ogden, & appellant. Parker, Atty. Gen., Anderson, Dep- P. Byron Geo. D. uty Atty. Gen., for the State. HANSON,
EPHRAIM Justice. Defendant Comp. under section Laws (now 103-2-1, 1933), Utah 1917 R. Utah S. the district county having employed court of Weber an instrument designated in and woman, a certain married whom prosecutrix, produce we shall call the with intent mis- carriage. plea A of not was entered. Defendant was convietéd, appeals to this court. appeal: presented propositions on the are
Four *2 sufficient corroboration I. there Was prosecutrix? prosecutrix woman; married testified that she was a The young very children, of the mother of two that she was that, defendant; when informed the and fact she had which 28th Janu- office on the to the defendant’s she first went pregnant ary, condition, and, for that she was she good her, health; examined and told that defendant inwas pregnant month. for about a She her that she had been she medicine that if there asked defendant replied would not take, that medicine could and defendant operation perform any good; and she do that he could prosecutrix right. what the informed the would be all He be no cost, there would would and stated being danger sick, for did not blame her and that he of her wanting it done. the 4th of Feb- office on to the defendant’s She returned performed, having
ruary abortion agreed portion paid fee. and him advised him and so operating placed table in the on the she was At that time into her va- office; an instrument he inserted defendant’s day, gina, she did. the next which her to return advised and which he the same instrument he used the return visit On right. all before, that she would be her and advised used had paid of the fee. him the balance then She February, again 12th of on the returned Prosecutrix feeling well, had was not that she advised defendant yet He made another examina- menstruate. started womb, and, a bloodclot in the there was tion, stated go prosecutrix removing that, home advised after leaving office on oc- defendant’s After a douche. take physician, who made an exami- to another casion, went she pregnant. returned her that she was She and advised nаtion phy- told him what the other office the defendant’s thereupon her told that he The defendant had said. sician something put open, to hold would the womb which he did. February
On the 15th of office she went the defendant’s again, accompanied by this mother. two time her went private office, into the defendant’s and he there made an prosecutrix examination of the and told her that her condi- tion tipping uterus, caused but that she go worry, following need not but to and see him home Monday. Prosecutrix and her mother returned on the Mon- day, again when he examined her and advised she coming cold, go with a down and told her to home and right. drink everything lemonade and that would be all prosecutrix The mother testified that about *3 February daughter’s 15th of she went to her home saw feeling accompanied very she was not well and her to office. defendant’s She told defendant she did not along daughter getting very think her well, was the doc- replied, everything tor “I took out that should come out and danger used a serum any so there would of be no infection.” placed prosecutrix That on oper- he occasion on the ating table, clothing, removed her and used an instrument vagina put something some kind her and that he open daughter requested to hold it to return on Mon- day, 17th, and that he would then take out what he had put accompanied daughter visit, in. The mother her on that daughter and the at defendant that time told them that the getting along right was all not to be alarmed.
On cross-examination the mother stated that she did not daughter know of visits that her made to defendant’s February, daughter office until the 15th of when advised occurred, purpose her of what had that she understood the going to the doctor’s office for that the purpose performed procuring for doctor had a mis- carriage, and that on the occasion that she went to the de^ prosecutrix with the fendant’s office she saw the defendant pick up manipulate an instrument and it and him use saw body prosecutrix. upon testimony tending
There was other to show certain ad- missions made the defendant. There was also the evi- physicians prosecu- dence who had examined the subsequent trix to the first three or four visits whiсh she office, had made to unques- the defendant’s which showed tionably prosecutrix pregnant, and, except for that condition, perfect she was in physical health and in normal condition. provides:
R. S. 105-32-14, Utah “Upon procuring attempting procure abortion, a trial or aiding assisting therein, inveigling, enticing or taking or for away any previously female chaste character for the prostitution, aiding assisting therein, the defendant shall not upon testimony be convicted of the woman or with whom the committed, offense was unless she is corroborated other evidence.” difficulty
We reaching have no whatever in the conclu- prosecutrix sion that sufficiently corroborated.
II. prosecutrix requested evidence shows that the perform operation, voluntarily defendant to and that she submitted purpose. By herself to him for such unlawful so doing, accomplice did she become an in the commission of charged? crime for which defendant The defendant requested charge accomplice. the court to that she was an charge *4 charged The court declined to so th'at she was accomplice. not an think We the court did not err in so charging. charged True it is that a defendant with the com- may mission of an abortion not be convicted such of- testimony fense on the of the woman whom the abor- alleged committed, tion is to testimony have been unless her respect in to the commission of the abortion is corroborated by other evidence. But that is so because of the statute quoted. any statutory above In the absence of provision, the defendant convicted the uncorroborated testi- mony woman, as at common 87, law. 1 R. C. L. 25.§ that, It not testimony does because the follow woman’s must
153 reason, by statute, be corroborated therefore she accomplice in stands the relation of to the defendant Although with the commission of the abortion. prosecutrix must be in corroborated order convict, requiring pre- to the reason for corroboration entirely hypothesis falling dicated on an different from that relating accomplice testimony. within the rule to J.C. 111, 2. subd. § 1933, 103-2-1, provides: R. Utah S. “Every person provides, supplies any preg- who or administers to woman, take, procures any any drug medicine, nant such woman to substance, employs any or uses or instrument or other means thereby miscarriage whatever, procure to with intent of such preserve punishable
woman, necessary life, her unless the same is to prison imprisonment in the not nor more than state less than two years.” ten adopted by in and has
This statute was this state every compilation revision of been carried forward except modification, our without amendment or Code prison” for the words “state have been substituted word “penitentiary.” substantially declaratory It is of the com- respect mon law in abortion. provides: 1933, 163-2-2,
R. S. Utah any medicine, drug “Every any person, or sub- woman who solicits any same, whatever, or who stance takes submits produce whatever, thereby or to the use of means intent life, preserve miscarriage, her unless the same is prison punishable imprisonment nor not than one the state less years.” five more than adopted by state this was first enacted This distinct, separate, and creates Statutes Revised statutory wholly of this Before the enactment offense. by the statute, condemned acts and conduct woman’s regarded criminal, she not sub- statute were delinquency although ject moral prosecution, juries. Ob- instructions to recognized their the courts *5 154
viously
quoted
each of
sep
the two statutes above
defines
quite
arate and distinct offense. It is
clear that the woman
spoken regarded
in
persons
the statute is not
as one of who
1933,
could be
of the crime
in
described
R. S.
103-2-1, supra,
prosecuted
and that she could not be
therefor
principal
accomplice. Says
either as
an
the court in
People Vedder,
salutary practice questioned.” to be now accomplice 673, true test of an is stated 16 C. J. 1315, as follows: § “One who could not be convicted the crime with which de- accomplice culpable
fendant is not no matter how his conduct connection therewith be.” statutory
In this state have of an we no definition accom- plice, 1933,103-1-43, principles: but R. S. thus defines persons crime, felony “All concerned in the commission either misdemeanor, directly constituting they whether commit the act or, being present, or aid and offense abet in its commission * * *” encouraged have advised its commission. 218, Hilberg, page 27, 215,
In 22 39, v. Utah at 61 P. State lays accomplices this court down the test for as follows: charged, “Could she have been indicted the offense either as principal accessory,” substantially and in all of defi- the authorities cited similar applied. 705, State, nitions are In 118 S. E. Stone v. Ga. 45 630, 632, Rep. 145, only 98 Am. St. said it is that one is accomplice principal
“when shown that he could have or acces- been tried as sory investigation.” in the offense under 196, citing Jones, 113, 198, In 88 v. Iowa N. W. State State, 469; Wood, Bass 37 Ala. Commonwealth v. 77 Mass. (11 Gray) 93, People, Dunn v. 29 Y. Am. Dec. N. down, is laid test
155 “Could he for be indicted the same offense for which the defendant being tried?” McCurtain, 481, In State v. 63, page 67, 172 52 Utah at P. 482, question, this court had identical before it this there said: prosecutrix accomplice “It is further contended that an is charged jury.
that the court should have so The contention not is person tenable. It has the criminal often been held that the on whom operation consent, performed although request her at with her is, holding nevertheless, accomplice. an follow not is the Such ing People Vedder, 630; People, cases.: 98 Y. 29 Y. N. Dunn N. V. v. App. 523, 319; State, 237; 86 Am. Dec. Watson v. 9 Tex. Commonwealth Wood, Gray Follansbee, (Mass.) 85; v Commonwealth . v. doubt, 274, 471; p. While, L., 155 Mass. 29 N. E. 1 R. C. 71. no § requests operation the female who to a criminal with a consents morally fault, yet producing view of an abortion is she is not prosecuted offense, under there- and cannot be the statute. She accomplice.” is not Carey, 632, 635, State In de- 76 Conn. 56 A. jointly charged fendant was with one Beebe on information May having performed operation for on one Ida a criminal Lafferty procuring for an abortion. Beebe against Lafferty de- were for state witnesses jury fendant. court to instruct Defendant asked the May Lafferty, accomplice. woman, that the The Ida was an regarded charged jury trial court not to be that she was question, accomplice. passing as an In on the court said : Lafferty saying not, “The did not err in that the witness court strictly perpetration speaking, accomplice of the accused in against prosecuted pun- charged could the crime him. She not be nothing justifies the crime. in the record that ished There any promise, the inducement of affirmation that testified under she immunity prosecution express implied, from for the distinct coming strictly within is far from had committed. She crime she Mansfield, Buller, Hawkins, ‘accomplice’ Hale, meaning as used participa- judges referring to the witness whose earlier and all the necessity turpitude involved that almost of crime tion in the credibility. theory destroyed defense his The interest which operation body of involved an on the of the accused the crime is that witness; conveniently performed that this could be more assent; giving with opera- assent she assisted him in the tion, joint perpetrator and was therefore a him with of the crime. injure may Ordinarily, conclusion does not follow. a man his own body by his agent, own hand or hand of an himself vio- without lating person injures body the criminal law. And who his injured party such assent commit a crime of which the guilty. justify A proving murderer cannot himself the assent *7 of person his victim. with is Noninterference a control of his man’s disposition taking life; extended the of his his own life is thing a distinct from the crime of murder. If man in a moment a opening by of weakness should assent to the of a vein another for the purpose taking life, and, expectation of his when in the immediate of death, assault, attending make a statement of the facts the it would hardly claimed, upon killing, of trial his assailant for felonious dying all declaration must be received the infirmities with attending accomplice of an in This distinc- the crime. injuring! body through himself, tion a between man’s his own assent injury may another, to such from and the crime be committed by inflicting injury, strongly in another in has been drawn opera- crimes akin to the one discussion. common law an under At body quick thereby child, tion on the of a with intent woman miscarriage, offense, cause her an indictable but it was not an body, her to own offense in so treat her or to assent to such treat- might give another; ment from and aid she in the offender physical operation accomplice performance of did not her an make might give practical in his crime. The assistance she thus perpetration perpetrator did in the of his crime. It not involve her things, which, in truth a crime in nature of she could not statutory held, And so under various forms of commit. it has been offense, attempted an could not be this the victim of abortion operation body, accomplice on an in a crime which consisted an her by consent, person, pro her another with intent with or without 85, 93; Wood, Gray 11 duce abortion. Commonwealth [Mass.] v. Boyton, 343, 345; Mass. v. Fol 116 Commonwealth Commonwealth v. 471; Hyer, Law, lansbee, 277, N. E. 39 N. State J. 155 Mass. 598.” continues:
The court equally the woman assent whether “He [the defendant] person, of her and assistance he assent to this or does not use through performing physical her assent is have law, perpetra- meaning in the not, assistance from her accomplice crime, her an in that make crime. of and does not tion his strengthened, weakened, by This view is rather the fact that the than Legislature promoting time, at the same of further for public miscarriage policy regards unnecessary which all public offenses, evil, created two new now contained in and distinct limiting sections 1156 and 1157 of the of one General Statutes power person, punishing of a woman over her own an at- tempt produce unnecessary miscarriage, through whether the use punishing every agent, of her own hands those an the other person otherwise, who, publication encourages the commission either crimes. The offense created in thus above-mentioned limiting power injure form, person her of woman to own purpose, punishment clearly from committed distinct that crime injury person another who her in violation inflicts on of law. legislation largely public policy The this is based which underlies protection protection against her own on due to weakness woman — greed as the criminal lust and of others. The criminal intent as well turpitude violation and moral involved in the a woman the re- person widely put control own straint over her different who, law, in clear that which attends the man violation from injury gain any hind, body pay woman inflicts (Italics perhaps added.) endangering health life.” Supreme of Minnesota states the reason for Court *8 rule thus: impression, may to be unsound rule that “As first seem an willingly offense, an submits one who solicits commission of being upon person, own not be deemed
to its committed her should accomplice, has be while those whom she thus solicited should principal transaction. But in cases of this deemed criminals application rule, public of this kind the demands the welfare justified by general exception from to be wisdom rule seems its Pearce, 226, 652, experience.” v. Minn. 57 N. W. 1065. of State 56 having almost identical statutes with states Various therefor, abortions, punishment and corro Utah as defining principals, accomplices are who borations proposition that woman whom sustained the have committed, consent, is even her an abortion has been sense, accomplice legal whatever not an 932, 407, 81 turpitude. Shaft, 166 N. S. E. v. C. moral State State, 53, App. 1916C, 627; 80 14 Ga. Cas. Gullatt Ann. v. 167; 340; Stafford, 285, N. 145 Iowa 123 W. S. E. State v. 158 State, 435, 759; State,
Meno
Md.
v.
117
83 A.
Shaw v.
73
337,
;
State,
Tex Cr. R.
We feel that the decision State v. correctly law, principle stated the of law there and that departed announced should not be from. prosecutrix testimony
Inasmuch as the be corro must borated, question cor character and extent of the important. 1933,105-32-14, supra, R. becomes roboration S. 1933, 105-32-18, relating R. S. latter section to cor accomplice, roboration of the first were Legislature adop enacted in 1878 this state in its tion procedure. of a code criminal reason It would seem employed able that the term “corroboration” as in both 1933, given significance. sections should be the same R. S. great many 105-32-18 applied has been construed and Laris, (2d) times 183, this court. State v. 78 Utah 2 P. 243; 972; Cox, 149, v. State Utah 277 74 P. Butter State v. field, 804; 143, Lay, 70 261 Utah P. State v. 38 Utah 986; Spencer, 110 P. State Utah It P. 302. has uniformly sufficiency been held the test of *9 corroborating evidence is that it in need be sufficient conviction, itself to sustain tend but must in and of itself implicate and connect the accused with the commission charged, of the crime and not be consistent with his inno opinion applying cence. are of We that the court in R. S. 105-32-14, supra, controlled the same should be rule. equivalent present case, in the
In we no such find charge request. of the court nor did the defendant make such True, request in the bill defendant his No. 33 as shown in exceptions might included therein what be deemed suffi- along propositions proposed cient, but which was with other objectionable opinion which in the writer’s were were very properly no error refused. Hence we have the rule that refusing request for which is committed in an instruction good part part. respect Furthermore, in in in and bad give “Request 33,” request refusal to No. the court’s duly excepted transcript, yet requested to as shown in the abstract; appears instruction in the nowhere defendant’s error, and, assignments specification of error in reference thereto is as follows: request refusing give “XXXI. The court erred in defendant’s (Tr. 85). excepted. No. 33 to which defendant “Requested 33. Instruction No. weighed accomplice great “The of an should be testimony altogether caution, jury may if and the disbelieve such untrue,
they jury being judges the sole of cred- believe it to be ibility of the witnesses.” being Being assigned found nowhere the ab- so exceptions stract, are driven to search the bill and we views, says it, writer, again expressing personal his find any purpose. request that the is not before us for requested an the mother III. Defendant instruction prop- prosecutrix accomplice. The trial court was an erly request. refused this given ques- must be the fourth
IV. Serious consideration admitting tion: Did the trial court err evidence to on an- that the defendant had committed abortion effect being prior offense for which he was other woman pur- offered the state tried? This committing showing pose the intent of the defendant charged. question no the act Authorities this are
160 means uniform. Some authorities hold that such evidence is intent, competent purpose showing relevant and for the regardless of what the defense be. Other authorities only hold that evidence such is relevant and mаterial when innocently done, accidentally the act done is claimed to be or by mistake, or or when the result claimed to followed have lawfully legitimate purpose, an act done for a or when there is room for such an Then in inference. rebuttal of such claim, purpose showing intent, and for the other abortions attempted performed may be shown. Other authorities attempted performed admit evidence of other abortions alleged on the same woman whom the offense is have been committed.
We will prop- concern ourselves with the first and second only. 941, People, 554, In ositions Clark v. Ill. 79 N. E. five or years preceding six women testified that for several plaintiff time of the offense the in error soli- patronage being willing cited and held herself out as able and produce miscarriage commit abortion means of in- course, struments evidence, and medicines. This inwas admissions, the nature of court held it was com- petent to show procuring the declarations of one trial abortion perform- to the effect that she was the habit of ing, solicited, or had such work. People
In Hagenow, 236, v. 514, 370, Ill. 86 N. E. evidence of other abortions was People held admissible. In v. Schultz- Knighten, 238, 277 Ill. 140, 115 N. E.
abortions was purpose admitted for showing knowledge. In People Hobbs, 779, 297 Ill. 130 N. E. v. page at says: the court “* ** specific produce intent or a criminal abortion proved guilt must be established, before the proof accused is performance of former similar criminal abortions on the same admissible, another woman is authorities, prove under specific intent. A defendant could not render this incom petent by interposing particular charge. People defense to the Hagenow, supra. In its case in prove chief the state must all of the crime, including elements of intent, and need not wait *11 by learn the character of the defense that is be made to the defen- plea guilty puts allegations dant. The of not in issue all material * * * any proper may defense be thereunder. shown So it is not law, plaintiff error, the as claimed and insisted the in that in proof appear for such to order be admissible must further that the alleges defendant admits thе commission of the act but act necessary preservation patient. for the of of the life the Courts effect, proof of other hold states to the same and such not confined may by parol to former for convictions abortion but made evidence and where the defendant was never tried for such former offenses.” Newell, 384, 159 In State v. 134 829, Minn. N. W. the court admitted evidence of other abortions the the accused for purpose showing of doing or criminal intent in the charged. act In 977, Rowley, State v. 197 Iowa 195 N. W. 881, page 882, says: the court objection “Over appellant of court admitted evidencetesti- mony tending appellant upon to show that had committed abortions other women Unquestionably, than the one named in the indictment. general that, upon case, rule is the trial of a criminal evidence of the commission of other similar crimes inad- the defendant is frequently
missible. The rule has been declared
that citation
so
of
unnecessary
are,
support
however, excep-
authorities
to
There
it.
rule,
particularly
question
tions to this
so
where
intent is
appellant
provides
involved. The statute under which
was indicted
produce
miscarriage
that the act must be done ‘with
intent’
any
provides
woman. It also
that the act is not criminal in
miscarriage
necessary
per-
event such
shall be
save the life
upon
operation
performed.
whom
son
appellant
performed
“In
any
this case the
opera-
denied that she
whatever,
urged
tion
and it is therefore
other similar
showing
crimes
however,
state,
intent was inadmissible. The
compelled establish,
part
case,
only
as
of its main
not
instruments,
they
the fact
the use of the
were used with
specific
charged,
necessary
intent
and that it was not
so
do in
Notwithstanding
appellant’s
order to
life.
save
denial of evidence
having
performed
charged,
of
upon
manner
the act
the burden rested
state,
only
prove
appellant
not
that the
used an instrument
charged,
procure
but that it
was done with
a mis-
intent to
carriage,
one,
and that such intent
anwas
unlawful
because of
unnecessary
that the
life.
to save
fact
appellant
fact
performed
closely
havе
other similar acts
connected
question,
performed
the act in
in time with
and that such acts were
with,
produce miscarriage,
and that the same was
the intent to
legitimate bearing
life,
would have a
to save
jury
case,
question
appellant
the instant
if the
of the intent of
that the act was in
of the state
effect
believed the evidence
performed.”
fact
leading authorities
now call attention to the
which
We will
competent
offenses is
hold that evidence of other distinct
justification
only
admitted
the act is
relevant
when
388,
People Lonsdale, 122
In
Mich.
for the act is claimed.
v.
Seaman,
distinguishes
277, 278,
People
81 N.
W.
the court
326,
says:
Rep.
Mich.
N.
61 Am. St.
65 W.
*12
prosecution
testimony
“The
a witness to show
introduced the
of
respondent
produced
applied
that
upon
had
to have an abortion
she
evidently
testimony
very weak,
of
that
her. The
was
was
However,
unwilling
there was sufficient
it to show
witness.
visit,
some
done towards
the
of woman’s
and that
acts were
the
attorneys
accomplishment
people
purpose.
for the
the
of that
testimony
ground
prove guilty
justify this
it tended to
the
that
rely upon People
348,
knowledge
intent,
Seaman,
v.
Mich.
107
Rep.
N.
Am.
This case is not within the rule
326].
163
mony
inadmissible,
People
under
Lonsdale,
the case of
v.
122 Mich.
392,
widely.
In
v.
204 P.
56 Cal.
says:
the court
rule, upon
particular
“As
for a
trial
crime
which
tends to show the commission of another and distinct
offense
are, however,
defendant
is inadmissible. To this rule there
several
exceptions. According
one
line
authorities the state would have
right
part
to introduce such
aas
case in chief
its
negative
possibility
operation
in order to
was necessi
patient. People Hagenow,
tated
the condition
health of the
v.
370; People Northcott,
App. 706,
Ill.
86 N. E.
236
45 Cal.
189
v.
704; People
Sindici,
App. 193,
P.
v.
54 Cal.
fornia cases
for their trans
court,
approval
exigencies
doctrine;
fer to that
withheld its
of this
requiring
application. However,
of those cases not
its
it is
settled
appears
such evidence is admissible whenever it
the defendant
innocently performed
claims
and for a lawful
People King,
App.
purpose.
23 Cal.
In v. 111 Clark 63 S. W. page 745, passing upon at question in the whether evidence of other abortions than the one for which the defendant is being may tried intent, be shown as evidence of the the says: court held, “It has been law, and such a seems to be the settled that may
physician upon woman, when, opinion, commit abortion a in his necessary life; it is to do to may so savе her or another commit the physician necessary. abortion under the advice of a it that is And so instances, prosecutions been held it has in some for criminal abor- 164
tions,
upon
part
it is incumbent
the
to show
commonwealth
as
of its case that
the abortion was not
in order
the
to save
recognized
of the mother.
It seems that
this court
the
life
has
Ky.
509,
People Commonwealth,
489,
last
87
9 W.
rule
mentioned.
S.
810. If it
or admitted that
the defendant had committed
was shown
attempted
justify
upon
ground
abortion,
necessity,
it
the
the
but
of
compe-
it
have
clear that the evidence indicated above would
is
been
intent,
prove
negative
his motive and
and to rebut or
tent
acting upon
professional
judgment,
idea
he
his
under
necessity
saving
In
the life of the mother.
the case at
of
bar
purpose
the evidence
not so much to show
or
and effect of
intent
primarily
guilt
motive, as it was to establish
of the accused
toas
opinion
majority
having perpetrated
of abortion.
of the
the act
In the
error,
court,
and it
this
should
admission
rejected.
opinion, however,
We are of the further
it
been
have
affecting
competent,
suggested,
as
above
intent
have been
would
motive,
proof
provided
been
admission that defendant
had
there
abortion,
resulting
act
undertook to
had committed
necessity.”
justify
plea of
act under the
knowledge
tending
woman’s
“Acts of defendant
show his
upon
pregnancy
abortion
intention
commit an
his
particular
subsequent
act
they
prior
proved
whether
were
operations per-
charged
indictment;
hence evidence
charged
operation
is admis-
or after
formed
defendant before
showing
act
with which
for the
intent
sible
question
competent only
on the
is
But such evidence
done.
was
intent,
intent has
where the unlawful
is not admissible
and therefore
only question
connected
defendant was
proved
is whether
and the
been
question
crime,
not involved.”
intent
where
p.
96.
§
C. J.
329>
14,
as follows:
78,
rule is laid down
p.
L.
In R. C.
§
operation
performance
admits the
accused
“Where the
believed,
necessary one,
and that
he
or that
so
it was
claims that
evi-
intent,
has
held that
been
performed it
criminal
he
without
operations
admissible.”
performed
other criminal
had
he
dence that
performed
others
operations
defendant
of similar
“Evidence
question
was inno-
admissible,
claims
where defendant
Nichols, Applied
purpose.”
1See
cently performed
for a lawful
p.
Evidence,
19,
276.
§
61 Am.
Seaman, 107 Mich.
65 N. W.
People
*14
In
v.
by the
abortions committed
Rep. 326,
evidence of
St.
defendant
court,
was
admitted. The
a well-considered
opinion, says
page
W.,
at
206 of 65 N.
The defendant would he if or at- tempted procure, miscarriage upon prosecutrix, un- state, necessary preserve less the same her life. The plea under the of not which the defendant entered was compelled prove part case, of its that the defendant procuring miscarriage doing was not so in effort save prosecutrix. proof, the life of the In order to make prosecutrix good testified that health was at the time she purpose went the defendant’s office. detailed the She agreement of her visit and the she made with the defendant physicians for the services that he towas render. Other were prose- called who also testified as to the condition making cutrix at time she was the visits to the defen- necessarily dant’s office. The criminal intent from followed performance of the act. No claim or intimation was made defendant that he performed had that it was to save prosecutrix. so, life of the Had he then done commission, attempted commission, of other abor- tions, would have been relevant and This court in material. McCurtain, State Utah 172 P. held that evi- dence of other abortions was relevant material when per- defendant admitted act claimed that saving formed for the the life of the woman. We approve case, however, the rule laid down in case. That point proposition is not in here involved. In *15 bar, been, no claim Had case at such was made. it then the controlling. McCurtain Case would have been prove, at it in the case Where the state is able to did bar, performance of the commission the act and its woman, not life then the to save the of shown, of defendant has been and evi- criminal intent entirely other and different dence of other abortions on defendant, competent. al- nor If the is not relevant women pleaded though guilty, that the act was had not claimed he life necessarily performed in to save the of an effort might woman, well of claim the state then rebuttal such attempted or committed of abortions offer evidence purpose disproving claim and of such for the the defendant performance showing of the acts which his intent being he is tried. prove be
Cases arise where the state would unable commission, proving the intent of the without defendant commission, sep- attempted by him other women of then, arise, a arate distinct offenses. Should such case intent, proving of criminal the state should for the a case, permitted main al- evidence on its be introduce such though plea had been entered defen- a here, prove dant; but, case can state, where the as was the relying separate of- and distinct the intent without defendant, it do so. should fenses committed separate and distinct of- commission Evidence rule, general its admission exception to fenses is an definitely the cases in which is rele- limited to be should safeguard rights of a de- in order to material vant and might defen- often be inclined convict Jurors fendant. charged, although innocent of crime were dant, he be prove he committed other and permitted had state being for which he tried. the one than distinct crimes evidence, have, we feel we are limiting as we In only rights de- safeguarding, not protecting fendant, as well. the state nеcessarily
It follows that the admission this evidence error, and that granted. new trial should judg- ment the court reversed, below is therefore case remanded for new trial.
STRAUP, Chief (concurring). Justice I chiefly concur judgment. of reversal the I do so ground (1) on the of inadmissibility the of the evidence as by to, commission the of accused an offense similar separate from, but and distinct the infor- in mation, evidence of an abortion claimed to been com- have attempted or by mitted to been him an- have committed on prior other woman eleven or months more to the commission alleged offense; refusing (2) error court in to charge jury alleged that the woman on whom the offense accomplice an charging was committed was she and in accomplice; (3) charging jury was not and error in provisions purpose 1933, which the of R. S. 103-2-2 (presently noted), 105-32-14 and to be could be considered jury, directing provisions them such could only bearing affecting credibility. on or considered approaching ground, In of I rec- a consideration the first ognize Some, subject. a conflict in the on the I cases think best-reasoned, cases, deny admissibility such evi- courts, instances, dence. Other some admit on theory motive, intent, guilty knowledge; to show or still dispel presumption to an inference or mistake or others miscarriage necessity procuring therefor accident preserve my to to the life the woman. It not respect holdings to with and then cite the cases divers They are accessible as cited in “count noses.” texts subject. approach question on I rather annotations regard recognized I es- a consideration of from what subject, principles law and an adherence tablished harmony principles, with such the texts cases to them, reaching those unmindful of conclu- than rather expediency. on mere sions provides (R. 103-2-1), 1933, that: S. statute any provides, supplies preg- person or administers to who “Ever any medicine, take, woman, procures woman to
nant substance, employs any drug means instrument or other or uses or miscarriage thereby procure whatever, of such intent punishable preserve woman, her life is unless same prison by imрrisonment nor more than than two in the state not less years.” ten Thereunder, required allege the state to convict is prove, only drugs that the accused or medi means or) produced, attempted produce, a cine or instruments miscarriage, miscarriage was not neces but also that such sary preserve the life of the woman on whom the mis carriage produced. That was decided in the case 681, Rep. P. 136 Am. Wells, 35 Utah St. State holding followed the well- 19 Ann. 631. Such Cas. ele that, negative essential established rule when *17 statue, re the state is ment an offense as defined of words, allege negative. quired prove In other to miscarriage procurement every of a not declare statute does preserve only offense, not to when done but is so be committed; that the it is on whom the life of woman descriptive of offense necessity far is so absence of such necessity proof that the without it cannot established be where, generally teach the authorities And so did not exist. negation here, an essential element statute, a is as under a physician in proof a Hence offense. to constitute the pregnant with child a woman of professional treatment his that the mis destroy is not evidence the fetus means to used preserve life of the wo carriage not 237,14 To that effect Clements, P. 410. 15 Or. man. State v. authority however, that for such It, is no Case. the Wells is or of separate and offense similar a of evidence may adduced. be fenses substantially recognized rule, a
It well-established separate offense is and similar courts, of all spe- for trial another against the accused admissible offense; that, cific put when the accused is on trial for one offense, he all, by convicted, if at evidence which shows him alone, proof guilt of that offense of of one or more offenses similar unconnected with that which he is on excluded, trial proof must be unless the comes within or exceptions one more general to the rule. exceptions, Such and as in Bowen, stated the case State v. 623, chiefly Utah 134 P. are: When it is material proper plan show or motive a scheme or for the com alleged offense; mission criminal where intent or guilty knowledge wrongful or unlawful act acts or material, especially passing illustrated in cases of uttering forged instruments, money, counterfeit coin or receiving property, stolen and in other cases where scienter guilty knowledge subject inquiry; is a material where alleged offense and claimed similar offense con another parts parts stitute general one transaction or of a scheme plan complete so related and connected that a account of given the entire transaction of the one not be without showing other, proving also or where the one involves proving other; adultery, prior familiarity acts or be parties disposition tween the to show an adulterous between them; charge rape attempted rape, previous in a at tempts female, of the accused on the same but not on another female; charge arson, that the accused at made other buildings tempts question, fire to set at but not tempts buildings with, to set fire to other not connected nor part of, alleged the same transaction of the offense. Jones (2d Ed.) 143; People *18 264, 286, 168 N. Y. N. E. 62 L. R. A. 193. 61 generally that, proof Courts adhere to the rule to admit of the commission the accused an offense than other offense, proof charged the must come within one exceptions general excluding of the rule more such chiefly subject evidence. What divides courts on the proof question of whether offered falls within or exceptions. exceptions, exceptions like all such without 170 general rule, application
to in their are restricted and enlarged. Oregon and not to be limited As stated Willson, 450, 810, in 230 P. court the case State v. 113 Or. R, (rehearing Id., L. 113 233 P. 39 A. denied Or. 84), general R. the commission of A. L. rule that separate proved support one in of the crime cannot be existence, named the indictment information still yet superseded exceptions that to the rule have not as excep- precept law, of the and hence the time-honored carefully guarded and their num- tions are to be limited and ber not increased. admissibility complained of
To evi- determine of an offense аs the commission the accused dence to, than, charged in the information that similar proof is within or without ex- and as to whether rule, general a consideration of ceptions necessitates respect charged adduced in offense admitted as to such other offense. as that well on whom the offense committed The woman woman, she was a married testified that substance children, given to two prior had birth she appear, made without unusual conditions so far as years age a half complications, one child about two and months, about thirteen and that the other about preg- 1930', again January, discovered she was she last her or more before then she had usual Until a month nant. menstruation, discovering monthly periods of and that accused, regularly visited the pregnant condition she her pregnant physician, and told him that she was licensed her and a half. He examined or a month a month about condition. She him if he in such asked she was found pregnancy. relieve He give her her medicine could any good, per- he not do could would her medicine told right, be all “it operation, and she would form an him she think it high.” She told would over. come would February days thereafter, office a few to his returned She up “had made her mind” to have him she 4th, told *19 operation performed, money and “that pay she had the him.” She “my testified that at that time health all right; I healthy every way,” except being pregnant. On placed that visit the operating accused her on the table “performed operation” by inserting an instrument “my organs, pain”; female I packed felt a that he uterus and her day, told to return the next when he would clean her right. out and she would all She returned day; next he menstruate; asked her if she had started to she told him she had days. not. He said she would in a He few again placed her on the table and used instruments on her before, stating as he had cleaning that he was her out so any poisoning there would not be blood and told her worry. paid not to him She on the first occasion $15 and $10 on the second. She returned to his office on the 12th of Feb- ruary feeling him very told she was well, and that she had not started to menstruate. He then made a further examination of her and said there was a blood clot day, womb cleaned it She out. returned the next when put something he told her he would in to hold womb open.
Up to that time she alone had visted the accused. On 15th and her mother she visited him at his office. He then a further prosecutrix, made examination of the her her told tipping uterus, condition was caused that she right, day would be all and asked them to come back in a They prosecutrix so, having or two. did then chills and fever, feeling and told accused she was worse. He told just cold, go had taken she and advised her to home drink hot lemonade. When she and her mother left the office accused, they directly family went office of the physician, placed table, fingers who her on a and “with his region my up proceeded reached womb and my body”; manipulate that she did not he know whether not, shortly instrument but used thereafter she flow, just blood, no blood started clots. daughter pregnant testified she knew her
The mother *20 daughter and February that the on the 4th of had at been the accused’s office going but had not her consulted about operation to his office performed, or to have an that she operation told her an performed, had been that the first accompanied daughter time she her to the accused’s office 15th, operation performed.” was on the “after the had been daughter On occasion she told the accused her was not getting along right, replied, all to which he “I took out everything that should come out and used a serum so that danger there infection,” would be no of an and told her to daughter give lemonade; take her home and her hot that the put accused made an daughter, examination of the her on the table, kind, put and used an of some instrument some- thing open in to hold the uterus and told them to come back 17th, in; on put when he would take out he what had they day, again on that returned the accused examined daughter, nothing just out, around,” but took “fussed day and told them to come they back in a or two. When left office, daughter having fever, they chills and went family physician. to the office of the mother The further testified that whén on the 15th she went to the accused’s office, performed knew that оperation she he had on her daughter; nothing appearing testimony, there is in her otherwise, any way that the mother in aided or consented operation encouraged or advised or it. family physician he, request
The testified that at daughter, her, thought February examined as he about 10th, history given and from the him as to her menstrual periods his examination opin- and from testified his daughter pregnant February 4th, ion the on and when physical he first examined her she was not “in such con- preserve dition that it was to remove the fetus to again life.” He further testified he examined her on septic then found her in a 17th, condition and evi- pelvic peritonitis, an infected uterus with dence of an infec- manipulation into the tion introduced uterus forceful attempted fetal uterus; removal of the contents of the open the mouth of the womb was wide and the mouth greatly powerful and neck di- dilated and stretched with a lator; immediately hospital, that he sent her to the where more,, she remained for when a week she left the hospital Testimony, pregnant. she was not of another wit- ness, prosecutrix, given sister as to an admis- operated prosecutrix. sion of the had accused that he woman, of another admitted over the ob- jection performed accused, as to an on her prior eleven months or more to the commission of the charged offense, March, substance that “sometime in *21 1929,” she, unmarried, then but married the father later child, believing pregnant, was ac- she consulted the office, at his an him cused and on examination he found such was the case. She testified that her health at that time except good, pregnant that was and had she leucorrhoeal discharges, and that she relieved from her wanted to be pregnant condition; suggested that the accused instruments, by the use of not let him do she “would that,” prescribed instead, and so medicine which she he following October, took; that born child was alive the thought eight child, it she was an months’ somewhere be- months, condition, and nine but in normal and tween seven husband, her then at its birth taken sister child; between first that the time she consulted father and the birth of the child she visited him the accused until average oncе and took treatments office on an a week at his him; day prescribed by medicine that a two before and and mother visited the accused was born she the child room; office; mother in an that the remained outer his at private room, in a where took the witness the accused her; that she did not know an anesthetic he administered did, she came from under the influence he but when what herself a couch feet fould on with her anesthetic she dizzy, silly, up felt that she “somewhat propped pack put her, the accused laughing”; home; shortly drove thereafter her mother she she then coming her, felt water from during which continued night, day and the next the child was born. She was asked' convey if she desired to the idea during that the accused all the time March from until the birth of the child was at- tempting abortion, to commit an to which answered, she “He doing, didn’t tell me what he was way but that is the looked to me.” The defendant rested his case without evi- dence the state rested. when
I have thus some detail characterized the two offenses they entirely separate to show that were and distinct trans- particular actions and that the one in no was influenced urged the other. It is prior evidence of such claimed motive, intent, offense was admissible to show knowledge charged of the accused toas offense. Because separate in some cases of a and similar offense is scienter, admissible to intent, show motive or the fal- lacious conclusion is deduced that such evidence is admis- sible m all cases where a intent essential felonious element course, Of a felonious in- offense. tent, purpose, a criminal or evil is an essential element in commission most felonies. But that does not mean prior, separate, that evidence of a similar offense given in all specific cases show what intent charged offense was committed. To contend is to *22 enlarge disregard exceptions or increase toor the to the general excluding rule A evidence. felonious intent is grand larceny. an essential element of hardly Yet one would that, taking by contend to show that the the of accused subject charged larceny intent, of the was with a felonious proof purpose, with a criminal or evil was admissible that he, place at a different time and and in a transaction un- charged related to and not connected with the offense or thereof, with the circumstances committed a similar offense by taking, driving, carrying away or property similar of another, though even taking the accused claimed that the of subject charged larceny of the was with an honest belief right that he had a So, too, to take it. a felonious intent Again, hardly it would of murder. is an essential element by killing that, of the deceased to show the be contended feloniously just maliciously or or without done accused was excuse, proof time admissible at another or cause C, place where two trans- he killed and murdered and distinct, wholly in no separate and one were actions other or circum- way related to or connected with plan, general parts a of scheme stances thereof and not though the accused claimed he slew deceased even killing was accidental. self-defense or that might Thus instances be noted. Numerous other similar offenses be adduced hold that evidence of other similar intent is an essential element all cases where felonious misconception exceptions charged offense is a general excluding rule such evidence. rule, In connection therewith there is another well-settled C, and, 206, that, as stated in 8 R. L. inquiry, proof of its “where from the nature of the under evidence charged implication
commission as carries with evident intent, attempted perpetration perpetration, criminal evidence of a like other offense will not he admitted.” So, says too, in 16 J. the author that: C. question or was “Where the is a certain act intentional whether mistake, the accused inten- done accident or evidence to show that
tionally On intent. committed acts is relevant to show the similar hand, proof where of the offense is such that of its the nature intent, presumption of criminal commission as carries with it attempted perpetration perpetration like of other offenses inadmissible.” Many support are citеd such texts. cases 103-1-19, too, effect, statute, our R. S. To that joint every public there must a union or “in crime or offense exist intent,” act the next section that intent “the the circumstances connected thé intention manifested (Italics accused.” mind discretion sound offense *23 added.) thrusting itself, by Here the act an instrument the accused pregnant of a into the woman known him to uterus be and good physical healthy condition, dilating powerful destroy expel uterus dilator to with fetus, clearly proclaims so the intent with which the act proof is done as to render similar another offense in People Lonsdale, v. admissible. Mich. 81 N. W. 277; People 363, 15 Corbin, Rep. N. 56 Y. Am. 427. proposition upon undisputed is self-evident. When thus opera it evidence was shown that the woman whom the performed good physical tion was was a married woman in health, prior given condition and thereto had she birth children, again pregnant, to two she became which knowledge, full the accused had she con condition her, employed sulted and him to commit an abortion destroy that for such fetus he inserted uterus, an instrument the mouth dilated and neck it, packed keep open expul it it to accelerate the fetus, say operation sion that such acts and so carry only described the evidence did not with them not implication proof intent, might an but direct of criminal as well said a case where shown accused with deadly weapon death, mitigating no beat another to with proof appearing, carry circumstances also did not such implication proof with it an of felonious In intent. either case, clearly proof such criminal intent is manifested offense, of the circumstances connected and hence prior similar offense is inadmissible. From operation undisputed description the evidence and the shown, presump as here is no there basis for inference or miscarriage resulting operation tion that the from the accidental, through mistake, or was not done intention ally, produced preserve the life the woman performed. indulge any on whom the To presumption undisputed from inference evidence so disregard legal is to adduced the natural аnd effect of evi dence.
177 guilty For reason less was the evidence admissible to show knowledge. Guilty knowledge Surely of what? not to show knowledge that the accused had that the woman on whom performed pregnant; nor to show he knowledge thrusting had that instrument the uterus dilating packing and the mouth and neck of it would destroy expel fetus; knowledge nor to show he had doing consequences what he was and the he when of thereof charged offense; knowledge committed the nor that he had necessary produce miscarriage that it was pre- not serve the life of the woman. The case is not one where, as an exception general rule, to the of evidence another similar may given offense guilty knowledge, be to show scienter or uttering spurious money of receiving cases coin or property knowledge stolen that it was stolen ofor other cases subject where scienter is a material element and a of inquiry. Says the author in 16 C. J. that knowledge “where guilty of nature the crime is such that must be proved, prove evidence place, is admissible to that at another time remote, not too attempted accused committed or crime to commit a guilt charged. predi- words, similar to cannot be that In other where act, cated on the mere commission knowledge guilty may be of proved complicity offenses; of but where evidence in similar knowledge presumed act, the character the criminal evi- from of dence other crimes should (Italics added.) received.” of complained isNor there basis for the admission of the discussing exception of evidence to show motive. In general rule, again 590, says the author C. J. prompting “evidence to show motive the commission of crime notwithstanding is relevant and admissible it also shows the commis- sion accused of another crime of a char- similar a dissimilar acter. Thus it be shown that the crime was committed concealing crime, prevent for the of another or to accused being However, convicted another crime. for evidence of an- prove motive, it is crime to be admissible tends n prove fairly directly growing motive out col- crime, another crime lateral which has no connection with trial, accused is on which the which therefore motj guise prove motive, be introduced under cannot relevant proving motive.” (Italics added.) directly anything appear or infer- is made to either Not prompted entially the commission that the motive which *25 grew of, particular alleged any in or in out was the offense with, any way the commission or related to or connected prior one attempted the offense or the commission of way by any in the other. was influenced evidence was admissible contention the further necessary produce miscarriage to the to show that was not it is, undisputed preserve the to the life the woman on of evidence, miscarriage the was likewise untenable. Whether necessary preserve life or not of the woman was was to the physical dependent upon condition. her state of health proof Logically, physical of state of health the condition or relevancy legal to of one woman has no show the condition by nor of another. Had the direct circum state neither physical stantial evidence shown state of health or con the operation per of dition the woman the was whom formed, directly inferentially to no evidence offered or miscarriage necessary preserve her show was not to life, by and no no evidence ad claim made accused and by tending necessity, it not duced him to show could such proof well be months contended that that the accused eleven miscarriage produced or more of another woman before relevancy preserve legal necessary not to had life Though necessity to show of offense. absence proof that the state convict had the burden of to show alleged miscarriage preserve life was not yet facts, fact, re woman, of the as all material such was quired by testimony relevant either direct be established physical circumstantial as condition or state of or produced miscarriage was health the woman whom the (State gathered might Shuford, 486), N. C. as be v. operation from the character and circumstances of the itself by purpose for and the which as disclosed the evidence the performed. operation it be Because some cases prove neces- difficult —here was not —to absence such sity justify incompetent does not a resort irrelevant clearly necessity evidence. The absence such was here testimony by established of the woman on whom the operation committed, by family physician, circumstances, character, disclosed the evidence. As stated Shuford, supra, necessity State absence such dependent chiefly upon physicial health condition time, at the woman and that fact was not affected operation performed evidence of an on another woman place. at a different time and alleged prior
No claim is made that offense and the parts transaction, parts similar offense constituted of one general plan of a scheme or so related or connected that complete account of the entire could transaction the one fairly given proving other, without also *26 proving necessarily proving other; the one involved the and made, clearly were such claim it on the evidence would not be tenable.
Further, why the chief evidence of like offenses reason opens is that the inadmissible is introduction of it the door to collateral issues not embraced within the information and apprised unprepared of which the accused is not and hence issues; upon may to meet such that to enter a trial of them require try try as much more time to them as to the charged surely, permitted give offense for if the state respect evidence with to the commission of other like of- give fenses, may the accused also evidence in refutation requirements thereof. One of the and of an in- functions distinctly ordinary formation and lan- and concise guage upon set forth the offense which the accused is to be trial, put person on and in such manner as to enable a understanding intended, common to know what so to as prepare enable the accused to charged himself to meet the offense, and to limit and restrict respect evidence with thereto.
180 McCurtain, 52 Utah case of v.
I come
State
now
charge
it was
of a criminal abortion
Such is in accord heretofore with the that, referred to where the nature of the offense is such proof impli- of its commission as carries with it an presumption intent, cation or criminal evidence perpetraton attempted perpetration of other like offenses recognize I al- inadmissible. that some courts have not it, ways distinction, nothing been mindful of said about such seemingly any without reference thereto announced ingredient that, stated where felonious intent is charged offense, may evidence be admitted of the commis- which, offenses, sion the accused of other similar so broadly stated, generally is not conceded be done.
Giving subject credit, on the full I the McCurtain Case complained think the of evidence in the case hand does any fall within it. Here there no claim of kind that the was knowledge pregnant condi- accused did not have full operated by him, tion of the woman that the miscar- riage produced accidentally or, mistake, was .unlike Case, any the McCurtain claim whatever that the miscar- riage preserve woman, the life of the nor any presump- undisputed on the inference or permissible. contrary, tion of claim On the just shown, indisputably accused what as heretofore did knowingly, do, willfully, unlawfully he intended to destroy pregnant woman because she did not the fetus of birth, any pretense prevent and to its without wish the child preserve the life of the woman. or claim whatever justification admission of the there Whatever *28 there Case of the claim in the McCurtain because necessity given support thereof as to made and evidence woman, produce miscarriage preserve the life of the any justification for the introduction of the evi- no such or complained shown, unless it be asserted dence of was here in all cases where a that such kind of evidence is admissible offense, charged ingredient felonious intent opinion justiсe which, sure, I am who wrote the learned did not intend. the McCurtain Case jus- convinced, record I think the On the record I am evidence, conclusion, complained of under tifies the knowledge guise showing guilty motive intent or necessity, com- to show the the absence of was introduced probability of indicate a mission of another like offense to charged offense, or to the accused of the commission disposition Chief Justice it. stated show a to commit As Bigelow (Mass.) Shepard, 1 Allen in Commonwealth v. dangerous species of evidence of other criminal acts “is only requires to meet evidence, it a defendant because him, charged against explain other acts than those trial, lead for which he is on but also because party jury great principle, is not to be violate by proof of another.” one that he is convicted of crime admitting prejudicial committed in I think error was thus prior evidence of such claimed offense. requested proposition: The accused as to the second
Now charge jury on whom the woman the court to accomplice, that as was committed was 1917, 8992, by Comp. now R. provided Utah S. Laws § 105-32-18, testimony, on her un- no conviction could be had itself other evidence which in was corroborated less she testimony tended aid of her to connect the and without charged offense. The the commission defendant with charge, that she was not an declined to so court charge requested accomplice. failure I think the charge requested the court The accused also error. 1934] *29 so accomplice. declined to The court an
the mother was jury de for their charge, question to the and submitted accomplice. I or not an she was was termination whether in such against was committed no the accused think error mother, matter particular, on the evidence for ought accomplice so have law, the court to was not an subject charged un jury. the evidence on the is Where was, disputed, question a witness of whether as here accomplice court, not one of law for the or is is is jury to to determine so and not left should be declared Coroles, 94, 74 Utah P. it as matter of fact. State V. 203, 204. committed, having on whom the abortiоn was woman solicited, voluntarily
freely and consented thereto —indeed operation requested, participated under in the —was accomplice, presently to be noted an and the court the statute jury. I am that a different should so have aware Case. There the court rule was declared McCurtain abortion the woman whom the criminal was held operation accomplice, though performed not an request her performed at her and with consent. Said court: "While, requests no the female who or consents to a doubt criminal producing morally fault, operation with a view of an abortion is yet offense, prosecuted and cannot be she is not under accomplice.”
the statute. is not an She therefore statute, holding wrong I think such
Because (of statute, chapter 2 and should overruled. The Penal be “Abortion,” Code) relating to consists of R. 103-2-1 S. The first section is: 103-2-2. “Every person provides, supplies any preg- who or administers to woman, procures any take, any medicine, woman nant or to' any drug substance, employs uses or or or instrument or other means whatever, thereby procure miscarriage intent to of such necessary preserve punishable woman, life, unless the same her by imprisonment prison in the state not less nor than two more than years.” ten 103-2-2, immediately section, following
The next is: “Every any person any medicine, drug woman who solicits or whatever, same, any substance who takes the submits whatever, thereby or to the means use with intent procure miscarriage, preserve unless same is by imprisonment life, punishable prison state not less years.” than one nor more than five statute, 105-32-14,
There also is a R. S. that: “Upon procuring attempting procure abortion, trial * * * aiding assisting therein, the defendant shall upon convicted of the woman *30 or with whom the by offense was committed unless she is corroborated other evidence.” pari directly relating
Such sections are all in materia to subject of “abortion.” All of sections and under heading the same in existence force were and full when alleged offense the McCurtain Case was committed Comp. and 4226, 4227, tried. 1907, 4858, Laws Utah and §§ Comp. 8118, 8119, By Utah Laws and 8988. §§ opinion in the McCurtain Case is reference made to what is 1933, 103-2-1, now R. S. no reference whatever is made any provisions to of either now are R. S. wl\at 103-2-2 provisions, or statutory 105-32-14. In view such it is to difficult understand the made statement and con- clusion reached in the Case that the woman on McCurtain miscarriage though whom the committed, or abortion was request consent, prosecuted at her and with her “cannot be accomplice.” under the statute. therefore She is not an As by supra, every is 1933,103-2-1, provided seen R. S. is person provides supplies any drug, etc., any who or or uses procure miscarriage instrument or other means to a of a (unless pregnant preserve woman necessary the same is to life), punishable imprisonment prison her in the state years; more ten not less than two nor than and the follow- ing section, 103-2-2, pari materia, pro- both in it further every etc., any drug, vided that woman and who solicits takes any operation or or submits to to the use of means what- miscarriage” thereby (unless procure “with intent to ever preserve life), punish- “is to also the same by imprisonment prison than one not less able the state employs years.” nor more than Thus the one who five means, or other and the other who uses instrument them, solicits, consents, with the and to use of submits procure miscarriage abortion, pun- are both intent to ishable, punishable act, the same criminal unlawful miscarriage attempting procure, procuring, or abor- guilt only being degree tion, the difference penalty. suggested
It has been the statement referred to in the McCurtain the court considered that the Case have person rendering punishable sections, two one who procure uses the instrument or other means with intent miscarriage pregnant aof woman and the section rendering employed are the woman whom such means punishable, if the use of such she consents submits to procure sep- miscarriage, are means with intent to two offenses; arate the one of such because use instru- consenting means, ments other because and sub- mitting accomplish of them criminal the use the same act, procuring miscarriage. unlawful *31 language opinion place, employed
In the in first any is, justify language does not view. though miscarriage committеd, at
woman on whom the request prosecuted un- consent, her and with “cannot be provisions probable der the statute.” It is more that the 1933,103-2-2 105-32-14, at- R. S. or of were not called inadvertently tention of over- the court otherwise were opinion. At in the looked. least no reference is made them place, import is, In the next the fair of the statute when 103-2-2, 1933, supra, 103-2-1 R. and are considered both S. they person together be, with should that the who crim- employs procure an instrument or means to inal intent woman, miscarriage pregnant the same with who purpose requests, consents, submits to the and and intent 186 means, guilty, though
use of such that both are in different degrees penalties. Carr, the court in the
What said case of State v. 389,42 215, 216, may 28 Or. P. well here be that: said authorities, who, being years, one “Under all the mature in ordinary possession faculties, knowingly voluntarily of his co- operates with or in aids assists another the commission of a crime, accomplice, regard degree guilt,” is without of his citing 49; 440; § 1 Russell on Crimes Wharton Crim. Ev. Rice on 319; Bishop Crim. Ev. on Crim. 1159. § § Proc. accomplice only A witness is an in a crime where he not may charged offense, be indicted also where he directly with an offense connected with growing out of the same criminal and unlawful act or part aiding transaction because taken therein him participating People Coffey, commission it. v. 901, (N. 433, S.) 161 Cal. 119 To that P. 39 L. R. A. 704. principle Coroles, supra, in effect is the case of State v. accomplice by Wharton, where definition of an as defined (10th Ed.) 921, 440, p. approved, Crim. Ev. is that: § accomplice person knowingly, voluntarily, “An is who with principal offender, common intent in commission with the unites real, merely co-operation of the crime. The the crime must be apparent.” too, So, Wade, the case State v. 66 Utah P. 838, 839, where it stated that “the essential characterictic is guilt,” accomplice of an and where is therefore criminal supra, quoted People Coffey, is statement the case approval, that: , participa- any then, “This, If in the true test and rule: crime criminally accomplice. corrupt been he tion of an individual has criminally accomplice.” corrupt If is not an not been he has every 103-26-41, statute,
Thus we have a R. S. give person gives promises wit- who or offers or felony; etc., testimony, guilty of a ness, to influence his *32 person 103-26-42, every section, who by the next 187 such, re- as be called who a or about to is witness receive, to influence his testi- bribe offers to ceives or etc., also are other mony, guilty a There of misdemeanor. every gives, person offers provide who or sections which judicial juror, offi- a or other give, a to a bribe to influence action, etc., and cer, official etc., his or to influence decision agrees receive, receives, a bribe every person or to who pun- corrupt purpose, are both for such or other 7, p. 161, Says L. that: author in 1 R. C. ishable. § general rule, may person giving “It offering, be as a a stated paying accomplice person it, a bribe is who receives particularly person wherever the a statutes make it for the crime offer, give pay, person receive, and a crime for a But bribe. offers, person wherever are statutes silent either as to the who glives pays bribe, person receives, one as who accomplice is not an of the other.” The same
188 repudiated by tion. The latter is criticized and Mr. Justice People Coffey, supra, Henshaw whose definition an v. accomplice approved by was heretofore this court. recognized by It is well all of the authorities that an acces sory accomplice (1 p. 159), before the L., 5, fact is an R. C. § advises, nearly every all and the authorities that one who aids, participates crime, and in the commission of a whether principal accessory fact, as or as an an before accom plice (notes, 829, Duff, Iowa, 144 122 State N. W. S.) (N. 24 Rep. 275). By L. R. A. Am. R. S. St. 1933, 103-1-43, persons principals all statute makes who under the common law were before accessories the fact.
Logically, I see no difference in cases of abortion where person who uses an instrument or other means with produce miscarriage pregnant criminal intent to of a and woman, matured with crimi- where she herself the same consents, requests, partici- nal intent and submits pates miscarriage, where, commission of the here, by say, punishable. some statute both are To as it is in cases, victim,” that the woman is a “mere no answer. Usually physician in such cases the does not seek or solicit inveigle the woman nor her into his office for the producing upon her, overpowering or, an abortion influence, persuade compel oper- or her to submit such an ation contrary, without her consent. woman usu- On ally, poverty misfortune, because of or to avoid ex- her posure standing, of her virtue her social or for other desiring physi- children, reasons not seeks and solicits the requests implores pleads cian and and sometimes pregnant him to her from her relieve condition. And where so, in such case he undertakes do both the statute under punishable. are
Further, by 105-32-14, upon pro- supra, a trial for curing, attempting abortion, procure, the defendant testimony shall not convicted of the woman on committed, testimony her whom the abortion was unless evidence, Legislature clearly in- corroborated accomplice that, is an dicated that the woman in effect convict, required corroboration. Unless her purpose requiring Legislature regarded her, I cor- no so see testimony. roboration *34 illogical say a and
Again, to nurse who aids it seems operation, putative father of in the or natural assists prosecutrix, child, husband of the husband or intended solicit, person, procure, who her mother other relative preg- perform employ physician an a and to abortion commission, advise, woman, aid, nant or who and abet its woman, accomplices, prosecutrix, all matured are but the a employs solicits, the accused to requests, and who herself voluntarily perform freely abortion, consents and and commission, who aids in its and and submits to and punishable, an ac- to a and is not statute declared be felon policy, necessity complice. public If or of to ob- because immunity granted thought convictions, be tain should be though abortion, at her re- an matured woman on whom regarded consent, committed quest and not to be as and convict, testimony that, not accomplice, and her need be Legislature, corroborated, let such be declaration punishable declaring it has her a as felon instead commission of the offense convict the defendant testimony by other evidence. requiring be corroborated her declaring preg- specific In the of such statutes absence miscarriage com- punishable for a nant woman a felon and request, upon at her mitted with her consent and attempting procure, an abor- procuring, or on a trial for upon the tes- not convicted tion, etc., shall be “the defendant timony whom the offense was or with of the woman evidence,” by other unless corroborated committed she is general woman, under as to courts divide whether 1933, 105-32-18, supra, of accomplice statute, such as R. S. accomplice. statute, Most of the courts not an or is our accomplice holding not an do so that she case punishable com- for the she was not indictable because prosecuted un- offense, could not be and hence mission of the Where, however, here, prose- der the statute. as she be cuted, where, here, as no conviction shall be had on her testimony, she, by evidence, unless corroborated great weight authority, possesses all the elements general accomplice, properly tests of an and hence should regarded as such. holding opinion
I thus am of the that the in the McCurtain miscarriage Case that the woman on whom the com- mitted, though request consent, at her and with accomplice, contrary re- to the sections the statute to, ferred and therefore should be overruled. charge subject
Now as to the on the in hand. case The trial court as to the of the mother stated the jury subject accomplice provided law to the on the anof statute, Comp. 1917, 8992, Laws Utah now S.R< § 1933, 105-32-18, supra, question jury but left the for the *35 accomplice. determine whether she an was was not That undisputed was evidence, error. On the she not was an ac- complice. ought charged. The court to have so the Since error favor, was in the accused’s it thus was harmless. operation
Now as to the woman on the whom was com- jury mitted : While the of court stated to the the substance statute, supra, every woman, etc., 103-2-2 of the who operation procure to submits an with intent a miscar- etc., riage, punishable imprisonment by by was as statute, provided, statute 105-32-14 of the substance of the upon procuring supra, abortion, etc., a trial for an the upon testimony defendant could not be convicted the of the etc., evidence, woman, by unless she was corroborated other therewith, yet, charged in connection that she was further accomplice, provisions an not that such the statute jury by only bearing could be considered the as on her credi- bility; put proposition words, in other the court so the to the jury that, notwithstanding to, the if statutes referred the jury credible, they believed the woman could convict the testimony defendant her without corroboration. The statute, 105-32-14, evident effect of R. is that S. testimony no had on the uncorroborated conviction be jury testimony woman, her of the whether the believed contrary proposition not, true or not. was Such jury. court put believed one, Whether was accomplice, still, under the not an the woman was was charge to, required no con- statute referred he was testimony the uncorroborated viction could he had on credibility woman, regardless or the it. Nor of her want court, as to the woman on whom the did the 105-32-18, by committed, charge provided as R. S. testimony supra, could be had on that no conviction evidence, accomplice, other “which unless corroborated testimony of the accom- the aid itself and without with the commission plice to connect the defendant tends charged by offense,” court as to etc., and as was accomplice; in mother, jury to be an if the found her testimony mother, words, court other as to the but, accomplice, say jury it to she was left whether at the offense was committed on whom as the woman an accom- request she not consent, her her and with though that under the statute plice, and, the court could not that the defendant punishable she herself was testimony corroborated unless she was on her be convicted pro- very yet heart of such testimony, out took they by charging that could be considered visiоns jury thus, credibility, if jury only affecting her credible, con- testimony could be defendant believed her corroborated, propo- though victed, very statute. teeth sition *36 ruling court, in fairly of the because that the It is evident charge jury Case, the felt constrained McCurtain alleged committed offense the woman on whom necessary to accomplice, nevertheless deemed not an to, errone- charge referred respect statutes credibility affecting ously charged purpose only as — offense was committed —for of the woman on whom charge on provisions be considered. which such could subject in inconsistent and not accordance with the forbidding statute a conviction the uncorroborated testiony woman, and had the undoubted to mis- effect prejudice jury direct and mislead the to the of the defendant. I opinion, stated, thus am the for the reasons that the judgment of the court below should be and the reversed case remanded for a new trial.
MOFFAT, (concurring). Justice I opinion reversing judg- concur in the the court in remanding ment of the trial court and the cause for a new trial.
I, however, analysis problems pre- concur STRAUP, sented as made Mr. Chief Justice and am in harmony position with the and results reached him concurring opinion. his HANSEN, (concurring results).
ELIAS Justice I concur in what is said Mr. Justice FOLLAND as to admissibility touching alleged attempt of evidence of the defendant commit abortion other than that charged in the information. There is considerable confusion admissibility in the authorities as to the of such evidence and stage when, as all, of the trial if at the same is admis- sible. We should not introduce such confusion into the law jurisdiction by of this any the announcement of other or different doctrine than announced in the McCurtain Case. my
In opinion, it is not to determine in this case prosecutrix whether the properly was not charac- accomplice terized in the court’s instructions to the jury. given Had the trial requested court defendant’s in- jury struction No. need not have been concerned with legal applied prose- characterization that should be requested cutrix. Defendant’s instruction 33 reads as No. follows: every any operation, “Yоu are instructed that woman who submits to thereby procure the use means whatever with intent *37 miscarriage, necessary preserve life, same unless the is felony punishable by imprisonment of a and is in the state prison years. not less than one nor than more five you “And are further instructed that law this State upon person procuring attempting the trial of a accused procure abortion, miscarriage, woman, person upon shall testimony not be convicted of the woman with whom the offense shall have been committed unless she cor- roborated. you “And are further instructed that the corroborative in such case is not sufficient to convict the defendant unless such itself, evidence in testimony woman, without the aid of the of the tends to connect specific the defendant with the commission of the information, offense in the and the corroboration is not merely sufficient if it shows the commission of the offense or the circumstances thereof.”
One assignments of the of error is that “the court erred refusing give request defendant’s No. to which excepted.” defendant given Nowhere in the instructions did the trial court jury degree inform the as to extent of corroboration of prosecutrix exacted the law Merely before guilty. the accused could be found jury inform the testimony required that her corrobora- tion informing without them as to the nature of the corro- required boration little, any, could be of but if aid to the jury, might well have misled them. It was not jury for the to know prosecutrix whether the was or was properly designated accomplice accused, as an he jury was entitled to have the instructed that her testi- mony must be corroborated to the extent and in manner asked for requested quoted. instruction heretofore
Because of give the failure of the trial court to that re- quested instruction, I reversing concur in the order judgment directing granted that the accused be a new trial.
FOLLAND, (dissenting). Justice I dissent as to the result reached and from the ex- views pressed part prevailing opinion by IV of the Mr. Justice *38 of HANSON,
EPHRAIM held evidence wherein it is only attempted in rebuttal. another abortion is admissible I am in accord with the view that evidence is relevant holding that intent, in the to the of but cannot concur issue admissibility rebuttal, only and then when its is limited to justifica- is admitted the defendant and act tion is for the act claimed. general proof rule,
As of the commission defendant wholly of with for which another offense unconnected rule, however, sub- he is must This is on trial be excluded. motive, ject among that, exception, others, whenever ingredient knowledge, or of the offense intent constitutes charged, or conduct of admissible of acts is intent, or motive, accused which tends to establish such may notwithstanding an- knowledge, the fact disclose Ed.) (2d on other The of Underhill Crim. Ev. crime. author abortion, charge p. 602, speaking with reference to the says: * * * abortionary proved. “An intent must Evidence alleged, attempted prior, subsequently, to the act had accused procure woman, using the an abortion same same or different on the women, operated means, he on had other or that other occasions abortion, being willing or held himself out as able commit purpose always intention in connection admissible his to show charged.” with the act 667, (2d page Wigmore Wigmore Ed.) on Ev. at
Mr. speaking abortion, says: available; (ante, 302) principle occasions Sec. “The intent subsequent, drugs, using tend prior whether such instruments or negative an innocent intent.” 882, 881,
In 195 N. Rowley, 197 Iowa W. State says: court appellant performed acts have other similar fact “The closely question, acts the act in and that such connected time with miscarriage, produce performed and that the intent
were life, legitimate bearing to save would have same was not case, appellant if upon question instant the intent jury believed the evidence of the state to the effect that the act performed.” was in fact Comm, (2d p. author of 2 Ed.) Jones’ on Ev. in speaking relevancy of other acts proving intent, gives reasons therefor as follows: particular “The intention with which a act done often constitutes inquiry, prove burden of the neces- the intent it becomes sary, many partic- instances, beyond to extend the examination ular concerning transaction trial. For the which the accused is *39 itself, purpose, therefore, proving intent, proving of of the act not permissible it is often the same to show other criminal transactions springing Bishop, sort on from like mental in his work condition. proper Procedure, giving Criminal after various illustrations as application up practice, conclusion of this rule in criminal sums his in following the words: “ is, though eyes prisoner prejudiced ‘It that the not in to be the jury by tending prove the the needless admission of to yet crime, prove another the whenever the evidence tends to which showing prove one, merely by other crime tends also to this the not prisoner by man, showing particular bad be a bad intent of, complained have existed in his mind at the time when the act he did admissible; really thus, admissible, it is as it is also if it tends ” not, in prove most facts of eases it act itself.’ does Notwithstanding general this of evi rule that kind intent, dence is relevant to the cases are not issue application, already accord as to its as Mr. shown Justice EPHRAIM where that, HANSON. One line of cases holds ingredient of intent crime element is an essential charged, state, proved must evidence of abortions, attempted abortions, admissible, because issue, part chief. relevant state’s case 63, 481, 482; McCurtain, State 52 Utah 172 P. Clark v. v. People, 941; 554, People Hagenow, 224 236 Ill. 79 N. E. v. 514, 370; People Schultz-Knighton, E. Ill. Ill. 86 N. 270 v. 238, 140; People 399, Ill. N. E. Hobbs, 115 N. E. 297 130 v. 779; 384, 829; Newell, 134 Minn. N. State State v. 159 W. Brown, 881; Rowley, 977, v. Iowa 195 N. 197 W. State v. 499, 797, 800; Boyce (Del.) Doty, 85 Minn. 3 A. State v. 167 196 (1915)
164, 208 760, 761; N. W. 9 129 Graham, Rex B.R.C. v. (1906) 402; Bond, Vict. L. 2 R. Rex v. 9 B. 92 K. B. R. C. abortions, 389. Other cases hold that of other attempted competent, abortions, relevant, ma becomes only terial when the defendant has testified otherwise charged, indicated he admits the act but denies criminal by assigning justification intent some other excuse doing People 348, act. N. Seaman, 107 Mich. 65 W. v. Rep. People 388, 203, 326; 122 Lonsdale, 61 Am. Mich. St. v. People Hodge, 277; 312, 141 N. 81 N. v. Mich. 104 W. W. Rep. App. People 525; Hickok, 599, 113 Am. 56 Cal. St. v. Ky. 555; Commonwealth, 204 P. v. Clark S. W. 740. accept the rule announced
I am not inclined to as law opinion, prevailing I think for the reason weight basically supported by unsound and important authority, the further and more reason and for contrary its doctrine this court committed to McCurtain, supra. State decision in using Cragun instru- with The defendant body prosecutrix intent ment the womb procuring miscarriage; procure of an abortion be- *40 preservation unnecessary ing the life for then and there By statute, the the information and the such woman. used, is, that was to the instrument with which intent preservation miscarriage necessary procure for the not charge. plea ingredient On life, of the of of not essential put ingredients guilty, in was essential of the each prove each element on state to cast the and the burden issue gravamen charged of the offense is offense. of the used. which the instrument was intent with the criminal prove merely of the the use instru- to It not sufficient was proper lawful been ment, have used it because bring purpose. the intent to the be established and If act yet clearly miscarriage shown, state must be about prove miscarriage procuring was not neces- that pregnant sary woman. Neither of life of to save these ignored by elements can proof nor state thereof delayed interposed by until a defense is True, the defendant. there was state, some elicited without attempted abortion, another from which the jury might intent, surely, have found criminal where case; the burden is on the beyond state to make its a reason- doubt, able it say is not consistent to it must rest its case part only on a of the relevant evidence available it.
This court is committed to the doctrine that in an abor prosecution tion the element of criminal intent is an essen ingredient tial charged, of the offense and that the burden proving is cast on the state of adequate such element and substantial evidence in its case in chief. In State Wells, 400, 681, 683, Rep. Utah 100 P. 136 Am. St. charged
19 Ann. Cas. defendant was crime with the appeal abortion. He contended on that the evidence was necessary procure insufficient it to show was not miscarriage preserve question in order to life. The ingredient whether this element was an essential of the prove crime which the state must in its case court, passing question, chief. The on that said: generally hold, “Under such a statute as this the athorities and we correctly, allege prove think that it is essential for the state to production miscarriage necessary that of the was not to save life, proving woman’s and that the burden оf such fact * * * prosecution prove state. In all for crime trials must to the jury it satisfaction that a crime committed has been before proceeds inquire corpus as to whom criminal. is the What is the charged? sufficiently proved delicti of the crime here The state pregnant; performed the woman was the defendant consequence her, she, operation, of such had a mis- carriage. proof of such facts But does not establish the crime of as defined the statute. Under such a also abortion statute miscarriage prove preserve essential the life woman.” holding criticizing contrary, In cases the court *41 said: court, expressions doing notwithstanding “In we think that the so its necessarily (People opinion, held with York
in the New court the McGonegal, supra) negative de- in is matter of the statute accused, fense, the affirmative must be established authority holding against great weight which we think is making negative have, an essential under statutes such as we element of the offense.” general p.
This is the rule as in 1 R. C. L. 73: stated drugs punished use of “When the statute the administration abortion, produce an the criminal instrument with the intent administered, intent with which a or an instrument substance used, important determining guilt or inno- consideration in is the cence of the accused.” necessary ingredients charged must of the offense judgment proved chief, or a
be the state its case Wells, supra. of conviction cannot affirmed. be State v. produces which tends the defendant evidence Where act, done that he but that was show admission did purpose, pursuance no or in of a lawful with innocent intent brought The most that is done new issues are into the case. question any to the commission set at rest serious is to body act, is, on the of the instrument use woman, of intent and and leaves the issue important by the determined issue to be save life as admission, Notwithstanding jury. defendant’s jury from all the facts and cir- to find it is still for of the essential ele- whether each evidence cumstances proved beyond reasonable doubt. ments has been proof ought in its not to be restricted The state already in- says that, if there is evidence rule which prove intent, relevant then no other troduced which tends produced de- until the same issue be on the part tending dispute introduces evidence fendant Wigmore matter charge. indicated how the Mr. has state’s Wigmore jury Ev. in 1 handled before should Ed.) p. (2d 615: process proof peculiar feature of this seen that “It will be (as usu- done —either because assummed to be act itself is jury to con- conceded, are instructed not ally) or because the it is
199 sider point they the evidence from this of view until find the act have proceeding been done and are to determine the intent.” already
The support that, cases cited the view where act admitted, carefully itself not jury is be in- should abortions, attempted structed that evidence of other abortions, question intent, is limited to the and is not determining be in considered whether or not the de- v. charged. fendant supra. committed the Bowen, act State State v. following pertinent The is from Doty, supra: performed “There was evidence of two other abortions about competent same time. Such for evidence in this class of cases purpose willingness showing readiness, or a 329; Wig. (2d Ed.) criminal 302, 359; intent. 1 C. J. 1 Ev. §§ State Newell, N. 159 W. Minn. evi- and cases cited. Such purpose dence is to be restricted received. to the limited for which it is distinguished merely objectionable proving It is to be from evidence as danger may because, jury other crimes. The of it is convict though guilt proved, con- of the crime is not it satisfied to jury carefully vict because of other crimes. court cautioned purpose as to how it should considered.” jury properly Here limited as to the instructed purpose for which the evidence was admitted.
Coming McCurtain, supra: now to the case State v. prevailing opinion, This case is referred to in the point. in is there said that it not I inclined am to believe controlling reaching importance it is of in a decision the instant case. the state in case in chief intro There its attempted duced on another abortion woman. It was admitted trial court to the issues as relevant rested, plea guilty. state made After the operating defendant took the stand and admitted by asserting prosecutrix, but denied criminal intent court, operation performed to save lifе. This in .hold admitting ing error committed that no had been evidence, said: prominent question “The of intent the most feature was therefore frequently prosecutions has been held in of this char- of the case. It proving fact
acter that criminal, showing accused, intent of the the state show operations performed upon pregnant that other similar were Among women. the numerous held cases in which the courts have so following: [Citing *43 we refer cases.]”
The fact the evidence was in the state’s admitted clearly case and not in rebuttal not is disclosed opinion court, by of the to but shown reference the is Briefs, abstract the No case. Abstracts and No. 3157. language supports, opinion is in that tends found which support, objected not to the view that the to was evidence except said, True, “The admissible rebuttal. court prominent question of intent was therefore the most feature prominent” of the case.” It was because the made “most testimony act, by denied defendant his admitted but had, by plea however, not criminal He his intent. By charged. all which had his denied the elements been merely emphasis act itself shifted from the he McCurtain it committed. The to the intent with which was us, point respects in the case with is in all with before Case exception there took the the defendant witness rested, here defendant did state while stand after the I testify cannot see that introduce evidence. not question class whether this control the fact should such utmost to an issue in case. The relevant evidence is notwithstanding that, if held result it be would confusion a material is relevant issue which of evidence class this state, yet may it become irrelevant proved must be interposes by evi- the defendant incompetent unless prevailing opinion seeks to The defense. a certain dence by adopting rule that such evidence such confusion avoid until intent the issue of unless relevant not is of the act and the it so an admission makes defendant justification therefor. excuse offering of some supra, by Mr. is cited Brown, Justice of State case The support of the there ex- views HANSON EPHRAIM however, case court, in that held The pressed. admissible, re- woman another abortion an application by jury question intent,
stricted its to following quotation: indicated present giving “In the case the defendant is with medicine using miscarriage. procure an with intent instrument indictment, upon based, The as well as the statute which it make the intent which the medicine is administered and the instrument used, part ingredient charge, essential and it is incum- prove specific bent the state to intent before a conviction very gravamen charged being can be secured. The of the offense alleged, intent with which the defendant committed the acts it prove giving given sufficient to medicine because be proper purpose. enough prove for a It is not the use of the instru- merely might employed ment because such instrument for a legitimate purpose. specific produce intent or mis- carriage proved guilt established, must be before the the accused is performance operations and the of similar on the same or other women time, operations, about the same we think are admissible. Such how- ever, prove are not admissible to the defendant committed the *44 charged, gave viz., acts the medicine and used' instrument men- indictment, only by jury in the but are tioned considered determining done, the intent with which the acts were jury testimony when the are satisfied that the medicine was given, manner or the instrument was used the defendant charged in indictment. appears position “From cited such to have been the taken the cases states, recognized many generally by the courts of and is the text abortion, attempt Indeed, procure miscarriage, are writers. gen- evidence of similar offenses in the trial of which acts has been erally permitting admitted. The rule the introduction of applicable to such cases because law makes the intent with done, alleged attempted, ingredient which the act is essential upon places prosecution prove charge, and the burden [Citing specific intent. cases.]” Ky. quotation Commonwealth, The from Clark 740, 745, shows on its face it is not an author 63 W. S. Kentucky contrary ity here, court to the decision since Wells, supra, in State v. had held it not in of this court prove necessity want of cumbent on the state to save It there said: life. instanсes, prosecutions “And has been held some for criminal upon
abortions, it is incumbent commonwealth to show as a part of its case that the abortion was not in order to save recognized the life of the mother. It seems that this court has not rule last mentioned.”
The extreme to which this doctrine leads is shown when that, it is said if prove the state “be unable to the intent proving of the defendant commission, without or at- tempted commission, by separate him on other women of offenses,” admissible, and distinct then such evidence is but, proved if the intent can be evidence, without such it is not question relevancy admissible. This would make the dependent on whether the state had other evidence which prove pleads would tend to the issue. If the defendant behalf, and does not take the stand in his own then but, such evidence is irrelevant intent, the issue of if he takes the stand and admits the act, but criminal denies intent, then such evidence is relevant to the issue of intent. question Surely relevancy of evidence does not rest shifting grounds. on such expressed by
I concur the views Mr. Justice EPH- parts I, II, opinion. RAIM HANSON in and III of his jury required court instructed the the statute of the woman whom the offense was corroborated, committed shall be and that a verdict guilty could not be found unless such corroboration were present. ample There is in the record corroboration to satisfy statutory requirements under either 105-32-18 105-32-14, 1933; hence I R. S. believe no there was *45 failing prejudicial respect error in to further instruct with Troiani, to corroboration. State Wash. 224 P. 388. judgment should be.affirmed. on Evidence notes Molineux, §
Notes
doctrine
stated
the annotator
notes
Duff,
142,
829, 24
A.
State v.
144
122 W.
L. R.
Iowa
N.
(N.
Among
S.) 625, 138
Rep.
Am. St.
279.
the cases cited
People
supra; People
supporting
Coffey,
such view are:
v.
App.
620,
Bissert,
1022,
72
Div.
Y.
affirmed
76 N.
S.
v.
389,
643,
1120;
Carr,
42
172
65
E.
28 Or.
N. Y.
N.
State v.
215;
133,
759,
Routzahn,
P.
W.
129
State v.
81 Neb.
115 N.
Rep.
People
App. 430, 152
675;
Southwell,
Am. St.
28
Cal.
v.
1089;
939; People
628, 141
Hyde,
App.
P.
156
Div.
N.
Y. S.
v.
695;
People
361,
24
N.
Winant,
v.
Misc.
53
Y. S.
State
v.
262;
State,
Smalls, 11
436
S. C.
Morawietz
46 Tex. Cr. R.
v.
997;
565,
State,
80 S.
v.
Tex.
38 W.
Cr. R.
S.
W.
Ruffin
169.
chiefly,
contrary,
are
There
some
State
cases
Wappenstein,
502,
989,
v. Dur
67 Wash.
P.
State
nam,
By
former
it is