State v. Dickinson
41 Wis. 299
Wis.
1877
Check Treatment
Cole, J.

The first inquiry is, whether the declarations of deceased to Mary Erickson were admissible for the purpose of showing her intention, and as their scope and effect were restricted by the court. Wo are of opinion #that they were. They constituted a part of the res gestae, were contemporaneous with the main fact under consideration, and were so connected with it as to illustrate its character. 1 Greenl. Ev., *307§ 108. It was certainly competent to prove that tbe deceased went to the house of the defendant at the time it was charged in the information the abortion was produced. Upon the authorities, her intent of purpose in going there might be shown by her declarations then made or previously made; because such declarations became a part of the res gestee. For it is evident the declarations were connected with the act of her going to the defendant; were expressive of the character, motive or object of her conduct; and they are to be regarded “ as verbal acts indicating a present purpose or intention, and therefore are admitted in proof like any other material facts.” 1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 Wall., 397; Enos v. Tuttle, 3 Conn., 247; Inhabitants of Corinth v. Inhabitants of Lincoln, 34 Me., 310; Lund and wife v. Inhabitants of Tyngsborough, 9 Cush., 36; Nutting v. Page, 4 Gray, 581; State v. Howard, 32 Vt., 380; Moore v. Meacham, 10 N. Y., 207; People v. Davis, 56 id., 96. It is obvious that the mere act of the deceased going to defendant’s house was equivocal; it might be innocent or not'; it might warrant the inference that she went for proper treatment of some ailment; the declarations would render her motive clear and intelligible. They therefore seem to us as falling under the denomination of the res gestee, and were admissible as original evidence as distinguished from hearsay.

In State v. Howard, supra, the declarations of the deceased, Olive Ashe, as to the purpose of the journey in going to the defendant’s, were held by the court to be admissible as part of the res gestee. Upon this question, Redeield, C. J., observes, that “the mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act.” In People v. Davis, when the deceased came home, in answer to inquiries from her stepmother, she made statements telling what had been done to her by Dr. Crandall at his office, and how he did it, exhibiting *308certain medicine wbicb sbe said tbe doctor gave ber, and stated what lie told ber as to taking it when ber pains camo on. Tbe court beld these declarations incompetent because they were merely narratives of past occurrences, did not become a part of the thing done at tbe doctor’s office, and were therefore no part of tbe res gestee. But tbe court say: “ Had it been shown that tbe medicine was to be taken to aid in producing tbe miscarriage, what was said in respect to it would have been admissible.” p. 103. The conclusion wbicb we have reached in view of all tbe cases upon the subject is, that the declarations of the deceased made to the witness Mary Erickson were so connected with ber act of going to tbe defendant’s as to constitute a part of that act, and were admissible as explanatory of that act. See Regina v. Edwards, 12 Cox Cr. Law Cas., 230.

Tbe second question relates to tbe admissibility of tbe instrument containing tbe dying declarations of tbe deceased. It is insisted on the part of the defendant that these declarations were not competent evidence against the accused. The question has in effect been decided adversely to this view by this coiirt. In Miller v. The State, 25 Wis., 384, and The State v. Martin, 30 id., 216, it was beld that dying declarations were competent evidence, notwithstanding tbe clause in tbe bill of rights which secures to tbe accused in criminal prosecutions tbe right “ to meet the witnesses face to face.” It was said that this provision did not exclude such declarations, because when the constitution was adopted it was well settled that they were admissible in cases of homicide, “ where tbe death of tbe Jde-ceased is tbe subject of tbe charge, and the circumstances of tbe death are tbe subject of tbe dying declarations.” It is true that both those cases were indictments for murder; but the reason and principle of the decisions are strictly applicable to the case at bar. For this is an information for homicide, for manslaughter in tbe second degree; and it is very apparent that tbe death of Jenny Everson is the subject of tbe charge, *309and tbe circumstances of ber death are the subject of the dying declarations. The declarations come, therefore, directly within the rule of the adjudged cases.

But it is said that the procuring or attempting to procure a miscarriage or abortion was not an offense at common law, if the pregnant woman was not quick with child and consented to the act. There are most respectable authorities in support of that view. (See Commonwealth v. Bangs, 9 Mass., 387; Smith v. The State, 33 Me., 48; Commonwealth v. Parker, 9 Met., 263; State v. Cooper, 2 Zab., 52; contra, Mills v. The Commonwealth, 1 Harris, Pa., 631, 634.) Our statute makes. such an act a criminal offense. Sec. 58, ch. 169, B. S. It will also be remarked that under sec. 11, ch. 164, it is not material whether the pregnant woman be quick with child or not. The statutory offense there described consists in administering to a woman pregnant with a child any drug, or in using any instrumental or other means with intent thereby to destroy the child, unless, etc., when the death of such child or of such mother is thereby produced. “ The use of violence upon a woman,” says Shaw, C. J., in Commonwealth v. Parker, supra, “ with an intent to procure her miscarriage, without her consent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt by drugs or instruments, the death of the mother ensues, the party making such an attempt, with or without the consent of the woman, is guilty of the murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where in like manner there is the consent of the parties.” p. 265. Lord Hale, in his Pleas of the Crown, says: “ If a woman be with child, and any person gives her a potion to destroy the child within her, and she takes it and it works so strongly that it kills her, this is murder; for it was not given to cure her of a disease, but un*310lawfully to destroy her child within her, and therefore he that gives a potion to this end must take the hazard, and if it kill the mother it is murder, and so ruled before me at the assizes at Bury in the year 1670.” 1 Hale, 430. East, treating of the law of homicide with malice aforethought, observes: “ Hither also may be referred the case of one who gave medicine to a woman, and that of another who put skewers in her womb, with a view in each case to procure an abortion; whereby the women were killed. Such acts are clearly murder; though the original intent, had it succeeded, would not have been so, but only a great misdemeanor; for the acts were in their nature malicious and deliberate, and necessarily attended with great danger to the person on whom they were practiced.” 1 East’s Pleas of the Crown, 230; Russell on Crimes, 540; Smith v. The State, supra. These authorities show that the offense described in section 11, where the death of the mother ensued from the unlawful act, was murder at common law; and that the statute really reduced the grade of the offense to manslaughter in the second degree. And it is entirely clear that the dying declarations would have been competent evidence at common law, where the death of the deceased, as in this case, was the subject of the charge and judicial inquiry, and the declarations relate to the circumstances of the death. Upon that point it seems to us there is no room for doubt. The fact that the offense with which the defendant is charged has been mitigated, does not change the rule of evidence. The offense is still homicide, though not murder.

In State v. Howard there is an express intimation that the dying declarations of Olive count for manslaughter; b Ashe were admissible under the out as the defendant was acquitted on that count, the exclusion of such declarations was decided to be an immaterial question. In People v. Davis, the defendant was charged under sec. 1, ch. 181, Laws of 1872, with advising and procuring one Clara Perry to submit to the use of an instrument by Dr. Crandall with intent to produce a *311miscarriage of the said Clara, and tbe indictment charged that the death of the said Clara and of her child was produced by the use of the instrument. But this was felony by the statute, and not manslaughter. The supreme court decided that the dying declarations were admissible in that case (2 T. & Coolc, 212); but this was overruled by the court of appeals. The court of appeals say that the charge against the prisoner was not homicide in any degree, and upon that ground the declarations were excluded. The admission of the declarations in that case would seem to have been extending the rule of evidence. The same is true of The King v. Mead, 2 Barn. & Cress., 605; Regina v. Hind, 8 Cox Cr. Law Cas., 300; and Rex v. Hutchinson, referred to in note (a) to case of Kimg v. Mead. In all these cases, while the declarations related to the cause of the death, yet the death of such party was not the subject of inquiry. These and other cases are referred to in note 2, § 156,1 Greenl. Ev., May’s ed., and the grounds upon which the declarations are received as testimony are discussed. (See the cases of The State v. Terrell, 12 Rich., 321; and Rex v. Baker, 2 Moody & Rob., 53.) There is no doubt that the declarations were made by Jenny Everson m exfremis, with a full apprehension at the time of the danger she was in and of death; and we therefore think they were properly received in evidence.

This disposes of the questions submitted for our decision.

The cause must be certified back to the circuit court of Green county with this our decision.

By the Court. — It is so ordered.