151 Iowa 618 | Iowa | 1911
Lead Opinion
The defendant is accused of having caused' .the death of Gertrude Jackson by committing an abortion on her, not necessary to save her life. She was unmarried, about twenty-five years of age, and died July 14, 1909,
and in promotion thereof, may be proven on trial of such perpetrator. State v. Crofford, 133 Iowa, 478; State v. McGee, 81 Iowa, 17; State v. Caine, 134 Iowa, 147; State v. Crofford, 121 Iowa, 395. But statements or acts of a co-conspirator, before the conspiracy was formed or after its termination, or not in promotion thereof, though provable as admissions against such co-conspirator, may not be introduced against an associate in the conspiracy, on trial therefor, or for a crime alleged to have been perpetrated in pursuance thereof. State v. Crofford, supra.
To render such evidence admissible, two conditions are absolutely essential: (1) That the acts or declarations sought to be shown were done or made pending the conspiracy; and (2) they were in promotion of its object or design. State v. McGee, 81 Iowa, 17; State v. Walker, 124 Iowa, 414; State v. Crofford, 121 Iowa, 395.
The declarations that defendant had given deceased a treatment, and that he had removed a part, were mere recitals of what had happened, and in no manner evidenced present or future assistance in the way of promoting the conspiracy to cause an abortion. Had there been evidence that the rubber was being carried by deceased at the time when she is said to have talked about it, the declarations might be admissible as explanatory of what was then being done to carry out the object of the alleged conspiracy-; but no such evidence had been adduced, and as what she is reported to have said was solely of a past transaction, and not in carrying out the common design alleged to have been formed, was- not admissible.
6. Same. IV. Eugene Newhard, who was responsible for her condition, took deceased to Monticello on Sunday, July 11, but did not accompany her to defendant’s office. Defendant testified that she came, and that he examined her, found no foetal heart, but that there was a discharge of pus, accompanied with a strong odor, and that he did nothing more, and permitted her to remain in the office until evening. Newhard was allowed, over objection, to testify that in asking him to take her to Monticello she had told him that she had had two treatments, but did not say by whom; that in going to the buggy she walked as though suffering from cramps, and sat on the edge of the seat; that on the way home she told him she had taken chloroform and had been operated on, and the child removed. Under the rule as heretofore stated, all this evidence, save of how she walked and sat was of statements of past occurrences, and not admissible. Mrs. Hotz also was permitted to testify that on the following morning deceased related to her that defendant removed the parts while she was under chloro
Because of the errors pointed out, the judgment is reversed and the cause remanded. — Reversed.
Concurrence Opinion
While concurring in the result and in what is said in all divisions of the opinion, save the third, I am so skeptical about what is said in that division as to withhold any concurrence therein.