State v. DoreState v. Dore
Thе defendant, Electa Dore, having been charged by indictment with unlawfully committing “the offense of abortion for the .purpose of procuring premature delivery of thе embryo by the use of an instrument on a pregnant female
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*286 Bill of Exception No. 2 was reserved during the testimony of Dr. Stanford Bevis, Assistant Coroner for Iberia Parish, called by the State as an expert witness, concerning his exаmination (following a call from the police) of the corpse of a baby lying in the weeds in the back yard of a certain address. In reply to a question by the District Attоrney as to whether the body was that of a premature baby, the witness replied: “The baby was definitely premature; I would estimate it was about four or five months,” whereupon counsel for the defendant objected to the testimony on the ground that the defendant was accused of the crime of abortion by the premature delivery оf an embryo, and the State was attempting to prove the commission of abortion by the premature delivery of a fetus, 1 contrary to the charge in the indictment. Following ovеrruling of this objection and reservation of the Bill, in subsequent cross-examination of the State’s expert medical witnesses, defendant’s attorney established that the term “еmbryo” is applied during the early stages of pregnancy, and the term “fetus” to later stages; and although classifications vary among medical authorities, the embryonic stage is usually considered to extend up to the sixth to the eighth week of gestation, after which the term fetus is applied.
It is elementary that the evidence in a criminаl case must correspond with the allegations of the indictment which are essential and material to charge the offense, in order that the requirement may be fulfillеd that an accused shall be definitely informed as to the charges against him, and that he may be protected against another prosecution for the same оffense. See 27 Am.Jur., Verbo Indictments and Informations, Sec. 177, pp. 722-723; State v. Braxton,
While the gravamen of the offense is not the stage of the child’s development, nor whether instruments оr drugs were used, nevertheless the terms “embryo” and “fetus” have different meanings, and the proper procedure in such cases is by amendment to the indictment to conform to the evidence, with postponement of the trial in the discretion of the judge, under
Unquestionably if the District Attorney had requested that the indictment be amended to conform to the evidence, it would have been so ordered by the Court; whether the defendant would have been ablе to show that she was misled and prejudiced by the variance in respect to which the amendment was made, and therefore entitled to a discharge of the jury and а reasonable' continuance of the case, is a matter about which we cannot very well conjecture. Suffice to say that the defendant was deprived of a substantial right.
Passing to the subject matter of Bills of Exception Nos. 5, 6, 7 and 8, we think the error there...committed was equally fatal and that the defendant is entitled to a new triаl. Bill of Exception No. 5 was reserved when the prosecuting witness was asked the questions: “Did you make any statement to Dr. Finley [Coroner] on that occasion?” and “What did yоu tell Dr. Finley?” Following the objection and reservation of the Bill, she replied: “I remember telling- Dr. Finley, T, Dorothy Lopez, went down to Electa Dore’s house, 409 West Pershing Street, tо cause a miscarriage. She passed a tube into me; that is what caused my miscarriage.’ There is only one thing Dr. Finley didn't put, that I had the baby in the pot and had thrown it away.” Following this she testified in substance that she signed the statement without reading it, to get away from the courthouse; and that she then “passed out;” but that the facts contained in the stаtement were true. She was then asked to read the statement, marked S-l for identification, to which objection was made and a Bill reserved (No. 6). Bill of Exception No. 7 was reserved when the same witness was allowed to testify, over defendant’s objection, that in addition to the contents of the written statement she remembered telling Dr. Finley “Where I had the child and in what I had the child.” Bill No. 8 was reserved following the overruling of counsel’s objection when the District Attorney offered the statement in evidence аnd indicated his intention to read it to the jury; and he did read the statement to the jury following the judge’s .ruling..
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The written and the verbal extrajudicial statements of a prosecuting witness аre merely hearsay, not original evidence, but emanate from a party interested and are never admissible except as res gestae (such as dying declаrations in a case of homicide) and for the purpose of refreshing memory. (Marr’s Criminal Jurisprudence of Louisiana, 2d Ed., Vol. 2, Sec. 577, p. 887.) Under the express provisions оf
For the reasons assigned, the conviction and sentence of the defendant are annulled and set aside and the case is remanded for a new trial, in accordance with law.
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