Appeal from a conviction under section 701.1, Code, 1950, which provides as follows: “If any person, with intent to produce the miscarriage of any woman, willfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned **
The instant indictment was returned on November 20, 1951, and was one of sixteen indictments so returned. Each charged the defendant with violation of section 701.1 and is identical except as to dates and women named therein. Each appears to be based entirely upon the testimony of the woman named therein. There was a plea of not guilty in the instant case.
As authorized by section 780.10, Code, 1950, notice of additional testimony was given to the defendant. It contained the names of the fifteen women, involved in the other indictments above-mentioned, and stated that each would testify that the defendant had attempted an abortion upon her by the use of instruments, and that at said time she was in good health. They date back approximately eighteen months prior to July 27, 1951, the date alleged in the instant case. A motion by the defendant to quash the notice or to strike therefrom the names of said women was overruled by the trial court.
On the trial the county attorney in his opening statement to the jury, over defendant’s objections, stated that to prove defendant’s criminal intent, the State would show there was a group of girls, naming the fifteen above-mentioned, who would testify to abortions committed upon them by the defendant, and related the details thereof. Mary Branco, the prosecutrix, was *1247 then called as a witness and sbe related in detail wbat occurred on July 27, 1951, at defendant’s borne.
Ardis Durnan, one of tbe women listed in said notice of additional testimony, was then called as a witness. Sbe gave ber name and address, objections by tbe defendant to ber being called as a witness having been overruled. At the time sbe was called an attorney entered bis appearance for ber and tbe record shows tbe following proceedings:
By tbe county attorney, “Q. Are you acquainted with Dr. J. A. Snyder?”
By ber attorney, “I object to that question, your Honor, for the reason that tbe answer might tend to expose ber to public ignominy, public disgrace, tend to incriminate ber.”
By tbe court, “In view of tbe statute, this witness having not appeared nor having anyway waived ber right to her statutory immunity, it is not for tbe court to say to wbat extent or in wbat way, and tbe witness having claimed, through ber counsel under immunity, the' court will have to respect it and the claimed immunity will have to be sustained.”
The witness was then excused.' Thereafter, tbe State called six of tbe other women, above-mentioned, and approximately tbe same proceedings were bad, except that one of them, not being represented by counsel, claimed her own immunity. While three other witnesses, also named in said notice, appeared and testified to other matters, their testimony was stricken from tbe record and is not material here. Tbe State then rested its case.
Tbe defendant called one witness who established tbe fact that he, the defendant, was at the time a duly licensed physician in Iowa and bad been since 1910. Tbe defendant then rested his case and tbe testimony was closed. No question is raised by tbe defendant as to tbe sufficiency of tbe evidence to sustain tbe verdict.
I. The defendant asserts that tbe overruling of bis motion to strike tbe names of said women from tbe notice and bis objections to tbe appearance of the six women on tbe witness stand was error and created such prejudice against him as to require a reversal of tbe judgment. Both questions involve tbe *1248 basic issue as to tbe admissibility of tbe proposed testimony and will be considered together.
It is urged that said names should have been stricken, and the objections to their appearance sustained because both the State and the court were advised in advance that said women, if called, would claim immunity and refuse to testify, and that the calling of them constitutes bad faith and was highly prejudicial to the defendant. The record shows that as to most of the said women, if not all, the State and court had been informed that such immunity would be claimed and they would refuse to testify. This, however, does not constitute valid grounds for either the motion or the objections. Immunity is a privilege of the witness only, and may not be urged by the party against whom the witness is offered. State v. Cobley,
Defendant further contends error, as to said motion and objections, because such proposed testimony is incompetent because it tends to show the commission of other and distinct offenses. Competent evidence is that which the very nature of the thing to be proven requires. Black’s Law Dictionary, Third Ed., page 697. The general rule is that, ordinarily, evidence of a crime not charged in the indictment is not admissible. There are, however, certain well-recognized exceptions. The rule, together with the exceptions, is well stated in State v. Vance,
It is claimed that said motion and objections should have been sustained, since, under a plea of not guilty, such proposed evidence was not relevant, at least on the State’s case in chief. Relevant evidence is, according to Black’s Law Dictionary, Third Ed., page 701, such evidence as relates to, or bears directly upon, the point or fact in issue, and proves or has a tendency to prove the proposition alleged. Defendant’s theory is that' under a plea of not guilty there is no issue of intent raised as the plea goes to the doing of the act, and in the absence of any attempt to justify the act the intent is presumed if the act is established, citing respectable authority therefor. This precise question does not appear to have been previously before this court. There is, however, equally respectable authority which holds against defendant’s theory and represents, we think, the majority rule. As before stated, the intent of the defendant is in issue in every case of this type, and in our opinion this is *1250 true irrespective of the defendant’s plea or the nature of the evidence offered in his behalf upon the trial of the case. In the 1952 Pocket Parts, Cumulative Supplement to Volume 1 Am. Jur., Abortion, section 42, .page 19, it is said:
“Other courts, especially under statutes making criminal intent an essential element of the definition of the crime of abortion, have held that in every ease the prosecution is under the burden of proving such intent, and that it is not, therefore, required to reserve such evidence until the issue of intent is specifically raised by the defendant.”
In an exhaustive annotation upon this general subject appearing in 15 A. L. R.2d 1080 it is said at pages 1091, 1092:
“A number of courts have held that criminal intent is in every case an essential ingredient of criminal abortion * * *. Under such a view, it has generally been held that the state is under an affirmative duty to prove such intent, and, for this purpose, may introduce evidence of other similar offenses committed by the defendant, notwithstanding that the accused has relied upon a general denial rather than a plea of justification, or that there is other evidence available which would justify the jury in finding criminal intent in the absence of proof of other offenses.” (Italics ours.)
In The People v. Hobbs,
The State cites State v. Rowley,
The record shows that no evidence of other offenses was received in evidence and, at first glance, what has heretofore been said as to the admissibility of such may appear to be dictum; however, under defendant’s theory and claim that such evidence was incompetent and irrelevant, and that the attempt to get the same before the jury constituted prejudicial misconduct upon the part of the county attorney, we think the admissibility thereof was directly in issue.
II. Error is also asserted because of the giving of Instructions Nos. 7 and 8. Instruction No. 7 defined direct and circumstantial evidence. Instruction No. 8 advised the jury as to the weight to be given to circumstantial evidence. No question is raised as to the instructions being incorrect, as abstract legal propositions. The alleged error is that the State’s case consisted entirely and exclusively of direct evidence and that the reference to circumstantial evidence could have no purpose, or effect, other than to direct attention to the “parade of women to the witness stand”, which, when taken in connection with the remarks of the county attorney in his opening" statement, constitutes prejudicial error.
The sole evidence offered by the State was the testimony of Mary Branco, the prosecutrix. Her testimony was, in substance, as follows: She went to defendant’s office in Roland, Iowa, on July 20, 1951, at which time she told him she was pregnant and asked him if she “could get an abortion.” He told her to come back after dark on July 27, which she did. No examination of her was made by the defendant. He placed her upon a table, gave her a shot in the arm and then inserted various instruments *1252 in her. He then packed her, gave her instructions as to what she should do and sent her home. She paid him $50. A few days later she had a miscarriage. She also testified that her general health at the time was good.
Black’s Legal Dictionary, Third Ed., page 697, defines direct evidence as “that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact.” Circumstantial evidence, by the same authority and page, is all evidence of indirect nature, . “The proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to establish such as are conjectured to exist.”
The State had two essential ingredients to prove: (1) The act itself and (2) the existence of criminal intent. As to the first, the act, the State’s ease is entirely direct. As to the second, the criminal intent, the case is essentially, if not completely, based upon circumstantial evidence. Intent is a condition or state of mind, seldom capable of proof by direct evidence. The record shows the woman was pregnant, her general health was good, she asked for an abortion, she was told to return after dark, no physical examination was made to ascertain whether such abortion was necessary to save her life. While none of ■these facts in themselves show a criminal intent, reasoning from these facts the jury could find such intent to exist. It was direct evidence as to the facts deposed but indirect as to the factum probandum. The instructions were proper.
Other errors are alleged but are not strenuously argued. We have examined the same and find no merit therein.
Finding no error, the judgment of the trial court should be and is affirmed. — Affirmed.