*1 532 May
Argued instructions reversed with trial June new v. ELLIOTT OF OREGON STATE 2d 382 383 P. *2 argued Levenson, cause and filed Portland,
Leo appellant. for brief Attorney George for Hoomissen, District Mult- Van argued County, and filed a brief for the cause nomah respondent.
Before Chief Justice, McAllister, Eossman, Jus- Perry, Sloan, O’Connell, Denecke, Goodwin tices. J.
PERRY, convicted of the crime of man- The defendant was appeals. slaughter by abortion, teen-age girl that a became discloses pregnant. could evidence from which There is mentally overwrought by she became have found that attempted self- and on two occasions her condition defend- further evidence that the There is destruction. performed abortion. ant indictment fails contends
The defendant erred in admit therefore the court a crime and to state failing ting his motion to sustain evidence, and, acquittal. The defendant’s a directed verdict *3 proposition it based contention is necessary allege that the defend to in the indictment osteopathic physician. or was not a licensed medical ant by by Manslaughter is defined ORS abortion follows: 163.060as any preg- any person woman administers to “If any drug medicine, or substance a child nant with any employs or or instrument or uses whatever, other thereby destroy to such with means, necessary same is unless child, person in case the shall, mother, such such life of thereby produced, mother is child or such death manslaughter.” guilty deemed
be Oregon Buck, 200 262 P2d 87, v. Or 495, In State of indictment a where the held court this by manslaughter physician abortion duly licensed negative that the the fact abortion was it provisions performed with the in accordance was (2), health of ex- i.e., ORS they Though separate pectant two each mother. acts, subject matter were to dealt with the same be pari in considered materia. contend herein does not that the in-
The defendant alleges dictment he is doctor or pro-
will disclose that he is member of medical only osteopathic physician, an but that since fession or Osteopathic Medical and this court has construed the engrafting exception Manslaughter into the Acts as exception negatived must be in Act, Abortion charging indictment this crime. necessity nega in state as to the The rule this tiving exceptions provisos in indictments or criminal early Mr. Robert S. in set out Justice Bean Polly, Tamler 528, 530, the case of State v. & 19 Or 25 P as follows: 71, LRA,
“* * * negatived exceptions should descriptive of the offense, when necessary ingredient but when definition; of its a they ters of defense merely, they are mat- excuse matter of afford negatived need not be and therefore * * *” the indictment. in setting forth the above after Mr. Justice And Lusk, 205 P2d Schriber, 185 Or v. rule State departure 630), been no (185 has “There Or noted principles thus from the of this court the decisions enunciated.” Act is not Practice Medical clear
It is description offense, part material *4 provi- application simply a limitation and Osteo- to Medical Act as the Criminal sions person is a unless phyiscians, therefore, pathic osteopathic physician aas medical or in the exception, as is matter of indictment, him, alleged. defense need not Oregon supra, v. Buck, In the case of State of was indicted as a medical where the defendant doctor, we that it neces therefore held without discussion allege sary abortion was in that indictment to performed not the health of the woman. alleged having The state, doctor, defendant was plea guilty defendant conld have entered and still guilty charged, been since have crime performed could have been abortion saving distinguished In health as from life. an indict ment “the conclusions to which accused entitled presumption under the of innocence should be excluded. * *” 42 In- * CJS Indictments and § formations, 116. correctly trial court denied motion. defendant’s also contends that since Medi
The defendant Osteopathic have Acts as to abortion been con cal and pari the Act now vio materia this court strued 14th the Federal Constitution, lates the Amendment to TV, and Article Section and Article Section I, Oregon 23(2) The defendant’s Constitution. arguments lacking merit we decline to so construing except that, to state them, consider any requirements together, violate do not acts provisions state or federal constitu either the tions. jury, law “The court instructed
The trial conclusively presumes intent a malicious and act.” unlawful commission deliberate from the excepted properly to the instruction on The defendant presumption criminal is not the basis A conclusive rebuttable. conclusive,
527 evidentiary rule of substantive but a rule, is not facts. requires from established a result law. It certain 199 NW 1367, 410, Iowa Hazelett, v. 197 Farnsworth Prostic, ALR v. 169 Accident & United 814; 38 Life A 421. Md 182 535, authority for is
No citation jurisdiction a in this that in a criminal case statement presumed the offense innocent of to be defendant is every necessary thereof until his element beyond guilt Doubt a reasonable doubt. is established guilty, only jury a verdict of returns is removed when ques disputable presumption innocence is for the jury jury goes room into tion which with the P 290. 205 Rosasco, 343, consideration. v. 103 Or State Oregon Nodine, 198 Or v. In State of statutory pointed con out P2d this court “ presumption intent to murder is con ‘an clusive deadly clusively presumed of a deliberate use from the *’ * * year, weapon, causing ”. ORS death within given (1) of law as an instruction not be should could find from which if there is certainly “It said, kill did not exist. We the intent to apt produce illogical to tell a confusion presumption a conclusive that there is one breath question in the next to submit kill and an intent to their determination.” of fact for as one to the pre 695). that since (198 add, now We would Or species instruc sumption evidence, is a innocence presumptions to intent should as conclusive tions on point out given case. We also a criminal never pre given the conclusive is not instruction provided sumption statute. following presumptions, others, and no
“The conclusive:
ÍÍ* [*] [*] # # “A malicious and intent, from the de liberate commission of an unlawful for the act, purpose injuring (2). another.” ORS 41.350 rule of law which resembles the instruction given rebuttable that “An unlawful (2). act was done an unlawful intent.” ORS 41.360 given question Since the instruction erroneous, presented prejudicial. it is whether not was
The statute which the defendant was under prosecuted and read the to is as follows: any person any preg-
“If administers to woman drug a child or nant with substance medicine, employs any or or uses or instrument whatever, thereby destroy to intent such other means, necessary to unless the same child, person shall, such in ease the mother, life such of thereby produced, such child or mother is death of be deemed manslaughter.” guilty of that there to be estab- it is clear statute Prom the destroy specific to conviction lished for preserve the life of the intent to and no unborn child, gist, the offense is, main thrust of The mother. intentionally death of to cause the acts done then, intentionally are ex- done acts child. The the unborn they the life by are done law if to cused upon to jury is therefore called The mother. specific intents; first, two reach a conclusion second, and child, kill unborn the intent respect of the mother. the life act with intent of that sub operation mind, and this of the anis Intent susceptible proof. This direct jective is seldom fact by usually a consideration subjective established fact is objective facts objective from these facts, ultimate conclusion is drawn. See Words and Phrases, Yol. 22, Perm. Intent. Ed.,
In this case there is direct evidence of the act of inserting the defendant in instruments into the uterus girl destroying the fetus. There could be no doubt use of instruments was a deliberate destroy objective relating act to the fetus. facts pur- to the defendant’s intentions as relate to the pose girl insofar as the life is concerned are not so conclusive.
A as a doctor, witness for the examined the state, girl pregnant purpose earing after was she for the injuries jumped moving for her after had she from a physical automobile. He testified her condition good, good while evidence health offered the state is sufficient to raise the inference and will fact sustain the that the abortion was not (1 to save the life of the Am mother Jur 150,Abortion, 52), § this does not overcome the of inno jury. cence until the inference is acted presumptuous part It on would our to assume laymen that a would understand that the in- *7 given application no struction as had the facts in jurors probable that this case. It seems more would applicable that was or it would not have been believe it having given, given. it should And that been further, by applied to the of the case as instructed be facts to the the court. the instruction relates state Since with which an act done, mind or intent is since of the act of the defendant was the insertion overt body girl, could into instruments conclu- unlawful, that this act was well believe inquiry sively the motive or intent ended further into performing wrongful act. We in the defendant this say giving cannot therefore of this abstract prejudicial. statement of erroneous law not was The defendant also contends there were errors com- argu- mitted the trial court with reference to the Attorney jury. ment of the Assistant District to the We have examined these contentions and find no merit in them. judgment
The is for a reversed new trial. dissenting. O’CONNELL, J., The trial court instructed the “The law that, conclusively guilty presumes a malicious and from the deliberate commission of an unlawful act.” ‹ majority opinion giving The holds that of this disagree. I instruction was reversible error. Oregon v. Nodine,
I shall assume that after State of
(1953) an instruction in
The trial court stated the elements of the necessary crime which were to make defendant’s conduct “un lawful.” fi These instructions made it clear that could not find defendant unless destroy he acted with the intent to the child and unless operation necessary was not mother’s life. Once the found these elements of guilt the crime to exist defendant’s be estab would necessary lished. The criminal intent would flow from proof of the elements It is listed in the statute. fi point The instruction on this was as follows: allegations “The material in this case and elements these: “First, ELLIOTT, defendant, did that HILLS ROSS unlawfully feloniously employ and instruments use and certain body in and Lee Schaub. of the said Sharon womb preg- “Second, at that time that Sharon Schaub was Lee nant with child. ELLIOTT, defendant, “Third, did ROSS HILLS destroy at that time intend to the said child. operation “Fourth, that such Lee Schaub. of the said Sharon the life ELLIOTT, defendant, did “Fifth, ROSS HILLS produce actions, said the death child. cause such any, crime, 14th “Sixth, if was committed on the day September, or was triable within occurred Oregon.” County, Multnomah
immaterial whether that intent is described to tbe simply as “guilty “malicious and intent” or aas intent.”
Tbe other instructions informed tbe that “tbe presumes law tbe defendant is innocent” and that “it prove beyond is for tbe State to a reasonable every allegation doubt each and material in tbe indict- constituting material and tbe elements ment, this (setting margin crime” them out as in indicated tbe 2). at note tbe
The instruction which is basis for reversal was part explanation presumptions of an extended of and inferences. fl Tbe as a whole, taken instruction, was not unfavorable to defendant. judgment
There was error. The no reversible should be affirmed. fl aspect This of the instructions was follows: degree establishing proof required, the State “In may rely upon evidence, or circum- or indirect either direct proves a fact that which stantial evidence. Direct evidence is presumptions, dispute directly, inferences or in without conclusively fact. itself, true, if establishes in which tends that which or evidence Indirect circumstantial another, by proving dispute and which a fact establish conclusively fact, though true, establish does of itself not presumption its exist- an affords inference but which you, as members of which is a deduction An inference ence. express proved, di- jury, without make from the facts is a deduction A to that effect. rection law partic- expressly made from directs to be the law which if, from consideration instructed You are ular facts. susceptible case, of two this the same evidence of all the constructions, with the one consistent or two conclusions inno- defendant, with his other consistent guilt and the adopt or conclusion construction you cence, then Circumstantial his innocence. most consistent is the which conviction, of a con- must be for a successful to be must say, those tendencies is to nature, clusive guilt the defendant’s minds to convince supposition doubt, to exclude beyond reasonable conclusively presumes a malicious law innocence. guilty any unlawful commission deliberate from act.”