15 Utah 136 | Utah | 1897
The defendant, impleaded with others, was indicted and convicted of having, on the 19th day of February, 1896, at Salt Lake City, Utah, procured an abortion on one Evelyn Bonnett. Evelyn Bonnett died from the effects of the abortion a short time after it was committed. The deceased resided at Provo at the time, and came to Salt Lake City, where, as the prosecution claimed, she was operated upon by defendant. The mother and sister of the deceased were called as witnesses by the prosecution, and identified a photograph of the deceased, taken about two years prior to her death, as a good photograph of the deceased, and that it was as natural a representation of the deceased as it could be; that the deceased looked like the picture ten days before her death, — the time she left Provo. The photograph was offered in evidence for the purpose of identifying the deceased. The defendant objected to the introduction of the photograph as immaterial and incompetent. Dr. Collins was called, and gave a minute description of a woman seen in the defendant’s office on the day in question, describing her face, features, height, age, and dress, and stated that he would recognize her again. He testified that she came down from defendant’s office, and seemed in pain, and that he heard screaming in the office just before she came downstairs following the defendant. The photograph was
We are of the opinion that the photograph was properly introduced in evidence. The witness saw a young woman in defendant’s office at the time in question, under the peculiar circumstances stated. He did not know her name, but noticed her so critically that he would know her 'again if he should see her. He was able to give a minute description of the woman he saw, but such description, however minute, could not carry to the minds of the jury so perfect a representation of the woman as an accurate photograph would present. The photograph, when shown to be a correct likeness of the deceased, served the purpose of locating her at defendant’s office, and as identifying her with more accuracy than any description from the witness could do, and thus aid the jury in coming.to a more correct conclusion than they otherwise could. In the case of Dederichs v. Railroad Co., 14 Utah, 137, this court held that the law was well established that photographic scenes are admissible in evidence as appropriate aids to the court and jury in applying the evidence, whether it relates to persons, things, or places, provided such photographs are shown to be correct. In the case of People v. Durrant (Cal.) 48 Pac. 83, — a case where the question at issue was very similar to the one here presented, — a photograph of the deceased, taken three years before the
Dr. Allen, a physician, was called by tbe prosecution, and gave testimony tending to show that be resided in Provo, and knew tbe deceased. Had met her frequently, and saw her five weeks prior to her death. At this time she appeared to be in good health. That be made a postmortem examination, and gave it as bis opinion, from a careful examination of tbe body, that a miscarriage bad been produced upon tbe deceased by artificial means, stating in full tbe reasons for bis opinions. He gave it as bis opinion, from an examination of tbe body, and bis previous knowledge of tbe deceased, that it was not necessary to produce an abortion in order to save tbe life of tbe deceased. Tbe last testimony was objected to as incompetent on tbe ground that tbe witness’ knowledge of tbe deceased was not sufficient for him to give an answer intelligently. We are of tbe opinion that the testimony was proper. Tbe reasons for tbe opinion were given with great detail. Tbe witness was an expert, and tbe weight of bis testimony was for tbe jury to consider.
Defendant’s counsel, on cross-examination of F. J. Collins, a witness for tbe people, drew out for tbe first time tbe fact that Mrs. Stansfield died from tbe effects of an operation, what tbe operation was for, who assisted in it, and whether tbe witness produced an abortion upon her, and attended her in her last sickness. On redirect examination by tbe prosecuting attorney tbe witness stated that be bad a conversation with Dr. McCoy about this operation on Mrs. Stansfield, whereupon witness was requested to state tbe conversation. The witness replied: “I asked him if be performed tbe operation. He said, ‘Well, by Cod, if I did, she needed it.’ ” Tbe ques
An exception was taken to the charge of the court because it ignores the fact that it was necessary to prove that a miscarriage (not the use of an instrument) was not necessary to save the life of the deceased. Upon this subject the court instructed the jury as follows: “To constitute the offense charged in the information, it must appear from the evidence given before you, to your satisfaction beyond a reasonable doubt: First, that the woman Evelyn Bonnett was with child; second, that some instrument was used upon her with a design to procure a miscarriage of the woman; that the use of such instrument upon her was not necessary to save her life. If, in this case, you believe from the evidence given before you, beyond a reasonable doubt, that the woman Evelyn Bonnett was pregnant, and that the defendant William McCoy, on or about the 18th day of February, A. D. 1896, at the county of Salt Lake, state of Utah, either provided or supplied the woman with any instrument to be used by her upon herself, or that he himself used an instrument upon her, with the intent thereby to procure the miscarriage of the woman, and that a miscarriage was thereby in fact produced, and that the producing of such miscarriage was not necessary to save her life, you should find him guilty as charged in the information.” That part of the charge referred to was not critically accurate. But the court charged the jury in that connection: “That if the defendant used an instrument upon her with intent thereby to procure the
On motion for a new trial several affidavits were filed, tending to show that a rubber catheter and metallic sound were found in the room of the deceased, Evelyn Bonnett, by her landlord, on the 18th day of February, 1896, about the time the abortion was alleged to have been committed, and that witness had not communicated the fact of finding such instruments, except as to the