85 Minn. 101 | Minn. | 1901
The defendant was convicted at the city of Duluth of the crime of abortion, and from an order denying his motion for a new trial appeals to this court.
There are several assignments of error, but of these two only, and of the same nature, need be considered, for we regard both as well taken, — that the rulings thereby questioned were noticeably prejudicial; and, as a result, a new trial must be had.
The facts necessary to a discussion of these assignments may be thus stated; Vinnie Norberg, an unmarried woman and pregnant, visited the defendant, a practicing physician in said city, for the purpose, as she claims, of ascertaining where she could go for care and shelter when about to be confined, some two or three months in the future. She testified that defendant then advised her to produce a premature delivery by means of an operation, which he could and would perform. It is undisputed that two days later the doctor used some instruments upon her, and gave her medicine, —a liquid contained in a bottle and some tablets in a box; that she paid him $25 for the services; and that some ten days afterwards she aborted.
It was the contention of the state, at the trial, that the instruments in question were used and the medicine prescribed for the express purpose of producing a premature delivery, while it was claimed on the part of the defendant, who testified in his own
It will be seen that the controversy at this point was sharp and clearly defined. The state contended that the instruments were adapted to, and were used with an intent to, commit the crime of abortion, while the defense insisted that they were used for the purpose Of curing the complaining witness of a venereal disease,, and without a criminal intent; so that the vital question in the-case, as it was then presented to the jury, was, for what purpose did the defendant use instruments and prescribe this medicine? Was it with an intent to violate the law, or in the legitimate practice of an honorable profession? After the woman had testified as-to the use of instruments upon her person, she was asked this, question by counsel for the state: “Why was he operating upon you, if you know?” This was objected to by the defendant’s; counsel as incompetent, irrelevant, and immaterial, and calling for an opinion and conclusion. The court overruled the objection, and
It is obvious that in overruling the objections to these questions the trial court erred, and in receiving the answers admitted evidence of.a very serious and damaging character to defendant. The questions were directed to the vital and principal issue in the case, as then presented by the testimony, namely, the object, purpose, and intent of the defendant when using the instruments and when giving medicines, and the answers went directly and forcefully to this issue. They called for the witness’ opinion or conclusion as to what defendant intended. It was his right to have this intent determined from the facts proven, independently of the •opinion or conclusion of the woman as to what he might have intended. His intent was to be determined from what was done, and not by what the woman thought as to his purpose or object when he treated her. The answers given to the questions were not statements of evidentiary facts, but simply opinions and conclusions as to the existence of a vital fact, and they were not relevant thereto. If the complaining witness could be allowed, in .aid of conviction, to express an opinion to.the effect that defendant intended to produce a miscarriage, she could have been allowed for the same reasons, and on the same grounds, and to facilitate an acquittal, to express an opinion that he simply treated her for .gonorrhea. The impropriety of such testimony is very evident. That the answers strongly tended to prejudice the defendant’s case in the minds of the jurors is manifest.
Our conclusion upon the assignments of error relating to the rulings of the court, above considered, renders further discussion of the case unnecessary.
The order denying a new trial is reversed, and the case remanded for a new trial.