126 N.W. 568 | N.D. | 1910
The defendant was tried on an information charging, him with having, at the city of Minot in Ward county, North Dakota, on or about the 4th day of October, 1908, caused the death of One Gina Lien by, while not having any design to effect her death, inflicting upon her a mortal wound while attempting to induce and procure a miscarriage, the same not being necessary to preserve the life of the female, and of which she died on the 7th day of October, 1908, at said city of Minot. He was convicted and sentenced to serve ten years in the penitentiary. Erom the judgment of conviction and order denying a new trial, an appeal comes to this court.
The record is very voluminous, and is composed largely of testimony of a number of physicians, including those who performed an autopsy, regarding the cause of the death as indicated by the condition of the body and organs. These witnesses exhibit a high degree of expert knowledge of the subject, and their testimony is far less conflicting than is usual when experts testify on behalf of both parties to an action of this importance. The young lady was about twenty-nine years of age. Her home was in the northeastern part of the state. She was about four months advanced in pregnancy. Dr. Engstad, of Grand Eorks, testified that she called on him at his office, he thought, on the 1st day of October, 1908, and requested him to make an examination of her; that she said she thought she had heart trouble, but that on examination he found her heart perfectly normal and her lungs sound; that she then told him she had abdominal pains. When he examined for appendicitis
The result of this appeal depends largely upon the correctness of the ruling of the trial court admitting this evidence and his charge on the same subject to the jury. It will simplify matters to first consider this phase of the court’s charge. The charge of the court on this subject was as follows: “In this cáse there has been received in evidence testimony relative to certain alleged statements of one L. W. Dale. I charge you that before you should consider any evidence relative to such statements, or such statements, you should be satisfied beyond a reasonable doubt from the testimony in the case other than such statements themselves that a conspiracy is proven to your satisfaction beyond a reasonable doubt to have existed between the defendant, Moeller, and L.
In explanation of this charge, brief reference to the testimony to which it refers is necessary. It is shown that Dale had a slight acquaintance with the witness Paulsrud; that they met at the Leland Hotel in Minot, where both were stopping, on Saturday, the 3d of October, .1908, and conversed together on that day and on Sunday, the 4th and Monday the 5th, and that in their conversations Dale confided to Paulsrud the fact that he was looking after a girl who was at the hotel and who was in trouble, and that he had employed Dr. Moeller to relieve her, how much he was to pay him, when it was to be done, and her condition afterward. None of these conversations were in the presence of the defendant, and, with possibly one exception, not necessary to consider, all related to what had been done or what it was proposed to do. The court permitted Paulsrud to testify to these conversations, and the charge quoted to the jury is in harmony with the theory that this evidence was admissible. The appellant urges that, even if the evidence as a whole was sufficient to justify the submission of the question of conspiracy between Dale and the defendant to the jury, the charge of the court was erroneous and the evidence inadmis
Acts and declarations of conspirators who are not on trial are sometimes admitted in evidence against a co-conspirator who is being prosecuted. The principle upon which such acts and declarations are admitted in evidence is that by tb.e act of conspiring together the parties doing so have generally assumed as a body the attribute of individuality as relates to the prosecution of the common design or purpose, and that what is done or said by any one in furtherance of that design is a part of the res gestee, and therefore the act of all. They are also admissible on the ground of agency. Most authorities are to the effect that a prima facie conspiracy must be’ established before the declarations of the co-conspirator are admissible, though some hold that the order of proof relating to it is subject to the discretion of the trial court. If the acts or declarations of the co-conspirator are not in furtherance of the common purpose, they are not admissible in evidence. Declarations made prior to the formation of the conspiracy, or those made after its execution, and declarations made relating to what the conspirators propose to do, hy a co-conspirator, and not in furtherance of the common purpose, are inadmissible. State v. Walker, 124 Iowa, 414, 100 N. W. 354; Nicolay v. Mallery, 62 Minn. 119, 64 N. W. 108; State v. McGee, 81 Iowa, 17, 46 N. W. 764; People v. McGarry, 136 Mich. 316, 99 N. W. 147; Spies v. People (the Anarchist Case), 122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. 865, and 995, note 4, 17 N. E. 898, 6 Am. Crim. Rep. 570, and cases cited therein; State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084; State v. Thibeau, 30 Vt. 100, and cases cited in note thereto in Book 10 Vt. Rep. Anno.; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; People v. Davis, 56
Applying this principle to the'testimony of the alleged co-conspirator, it is enough to say that, with the exception of one question, which may have been proper, but which standing alone was entirely inadequate to connect the defendant with the crime, it may be divided into two classes: The first relates to certain acts of the defendant; the second to declarations of the alleged co-conspirator as to what arrangements he had made with the defendant, what was planned to be done, why it was to be done, and what had been done and the result. With the exception of the one question referred to, none of these declarations were pertinent to the carrying out or in furtherance of the enterprise. The witness and Dale met casually. They had a slight acquaintance. They took walks on the street together and conversed in the hotel, but the witness was not asked to and did not participate in any of the plans. The statements which he testifies Dale made were not made with a view of or to aid in carrying out the illegal conspiracy, if any existed. They were simply recitals of what had been done, and what it was proposed to do, without any disclosed purpose. They were also made without any opportunity for the defendant to cross-examine Dale, and not in defendant’s presence. We are unable to discover any principle sustained by authority warranting the admission in evidence of these declarations, with the possible exception of two or three cases, where loose statements of the courts have indicated that statements of a co-conspirator were admissible, without distinguishing why admissible, and we think based upon facts making it unnecessary to do so.
It is urged by the state that the questions asked by it which elicited the testimony referred to did not furnish any indication that the answers would be incompetent, and that the questions were in themselves competent, and therefore the court did not commit error in allowing the witness to answer, and that defendant should have submitted motions to
Error is assigned in permitting Dr. Engstad to give his opinion that it was unnecessary to procure a miscarriage. Dr. Engstad’s examination was only superficial; he made nothing but a partial external examination, and when the girl informed him of her condition he went no further. This involves the question whether it was necessary for the •state to negative the necessity for the operation. As this is not discussed in the briefs, we shall not pass upon it.
Error is assigned because Dr. Engstad was not permitted to testify in substance that it was not uncommon for women illegitimately pregnant to inflict injuries upon themselves, particularly upon the uterus, in an attempt to produce a miscarriage and conceal their condition. We do not pass upon the objections taken to questions of this nature, for the reason that the record shows similar questions were asked of experts and answered, and there is no conflict in the evidence on this point. An answer to this question, if in favor of appellant’s contention, would only have been cumulative; hence, if it was error to sustain the objection, it was error without prejudice.
Dr. Engstad was asked on cross-examination to state whether an infection caused by an injury to the uterus might not remain dormant a greater or less period of time before it would spread out and give evidence of its presence. The state’s objection to this question was
The fifth and sixth assignments of error relate to the sustaining of the state’s objection to the following questions, asked one of the experts: “Q. Don’t you know that the text-books dealing with obstetrics and gynecology lay it down as a fact of not uncommon occurrence for a woman in a pregnant condition to inflict injuries upon the walls of the uterus and cause similar conditions to those which were presented by the uterus described in this ease?” and “Q. Does not Hearst say in his text-book that injuries to the internal walls of the uterus resulting in septicaemia may be inflicted, and in fact not uncommonly are inflicted, by the pregnant woman herself ?” These questions were propounded to Dr. Larson, who conducted the autopsy. He was a most intelligent witness, but his experience was limited, and his testimony was based very largely upon knowledge gained from reading rather than from experience. Had these questions been submitted for the purpose of eliciting information as to the contents of text-books primarily, the ruling of the court might be, and doubtless would have been, correct, but it is now claimed that they were submitted solely for the purpose of testing the accuracy of the witness’s knowledge and the correctness of his conclusions as an expert, that necessarily his opinions were based upon reading medical works, and that their bearing was upon the weight which should be given his testimony. If this was the reason assigned in the trial court, the ruling was error.
The fourteenth assignment of error relates to defendant’s request, that the court instruct the jury that if the defendant inflicted a mortal wound upon Gina Lien, after an abortion or miscarriage had been ac
We have discussed the questions raised on this appeal in a somewhat general way, because to cover details would make it necessary to include in this opinion many pages of unsavory testimony, and extend it to an undue length, without any compensating clearness in giving the reasons for our conclusions.
Tor the reasons stated, the order of the District Court denying a new trial is reversed, and a new trial granted.