95 Vt. 508 | Vt. | 1922
Sometime in the summer of 1920 Sadie Warner, an unmarried girl eighteen years of age, established such relations with James Eaton, an unmarried youth twenty-four years of age, that she became pregnant. She promptly reported her condition to Eaton, who applied to the respondent, a practicing physician at St. Albans, to help the girl out of her trouble. He told the respondent of his relations with the girl and.of her condition, and asked the respondent for some pills to “bring her around.” 'This interview with the respondent was in the evening and about the first of December. The respondent thereupon made up a package of tablets, wrote directions thereon, and gave them to Eaton, who paid for them and took them to the girl. The latter took some of them without result. On the evening of December 12th, Eaton and the girl went to the respondent’s office to get some more pills for the same purpose: The respondent then gave the girl another package of tablets, with directions for their use, and said if they did not help her to come back and he would “fix her up.” Eaton paid the respondent for these tablets. They had no effect on the girl, and on the evening of December 20th, Eaton and the girl again went to the respondént’s office, and the respondent performed an operation upon her, for which Eaton paid him twenty dollars, and which at once started menstruation, which continued until January 22¿ 1921, when the girl became most desperately ill and miscarried. Her attending physician, as a result of what she told him, summoned the respondent to the sanitarium to which she had been removed, and he came in haste. He was very nervous, and told the girl not to say anything about the operation, as it would get him into trouble.
The respondent told a very different story. He admitted furnishing the tablets, but he said they were only for a cold and were given for nothing else. He admitted placing the girl upon an operating table, but he insisted that it was only for the purpose of making an examination to determine whether she was pregnant. He denied performing an operation, and stoutly maintained that all he did was to make the examination suggested. He testified that he steadfastly refused to do anything to bring on a miscarriage, and denied that he told her to say nothing about an operation. He was prosecuted and convicted under G.' L. 7013.
At the close of the evidence, the respondent moved for a verdict, and when this motion was overruled he excepted. One of the grounds specified in this motion was, in effect, that the corpus delicti had not been proved.
Under such a statute, it is not necessary to prove that the respondent manually administered the drug or thing in question; it is enough that he furnished it. McCaughey v. State, 156 Ind. 41, 59 N. E. 169. It is not necessary to show that the substance administered is of a noxious character, or that it possessed qualities efficient to produce a miscarriage (Com. v. Morrison, 16 Gray [Mass.] 224; State v. Shaft, 166 N. C. 407, 81 S. E. 932, Ann. Cas. 1916 C, 627), or that the woman took it (Com. v. Morrison, supra), or that she was actually pregnant (1 C. J. 312), or that a miscarriage resulted. State v. Brown, 3 Boyce (Del.) 499, 85 Atl. 797, State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912 D, 1317.
All that need be shown to warrant a conviction is that the respondent purposely did some of the things prohibited by the statute intending thereby to procure the miscarriage of a
The instruction first quoted, obviously put the burden of proof under the excepting clause of the statute on the respondent. This was error. As we have seen, the burden was on the State to negative the necessity of an abortion. The instruction last quoted does not affect the situation. It merely leaves it to the jury to say how the fact was, without reference to where the burden lay. The general instruction on the subject of the burden of proof was not sufficient to prevent the erroneous impression involved in the instruction excepted to having effect. The exceptor put his finger on the exact point and made clear the fault. The error was harmful and requires a reversal. .In view of the reversal thus required, we need take no time with the motion to set aside the verdict which is predicted upon a situation which is not likely to arise in another trial.
Judgment reversed, and cause remanded.