Thompson v. United States

30 App. D.C. 352 | D.C. Cir. | 1908

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. There was no error in sustaining the demurrer to the plea in abatement. Instead of certain and distinct allegations of fact, it consists of conclusions of law. The indictment is regular, containing the formal indorsements showing it to be “a true bill,” under the signature of the foreman, and was presented, and filed in open court. The argument for the appellant indicated that it was the intention to show that there had been an indictment by a former grand jury, and that the present one was found thereon without re-examination of witnesses. Without expressing an opinion on the point whether such an inquiry can be made under the rules of practice prevailing in the District, it is sufficient to say that no such fact is alleged in the plea.

2. No attempt was made by the prosecution to prove by the witness Dr. McKay any declarations made by the party on whom the unlawful operation is charged to be performed, tending to show the cause of her miscarriage, the fact of which was apparent, or to connect the defendant therewith. The evidence was confined to her condition at that time. Such evidence is clearly competent. Lyles v. United States, 20 App. D. C. 559, 564; Northern P. R. Co. v. Urlin, 158 U. S. 271, 274, 39 L. ed. 977, 15 Sup. Ct. Rep. 840; State v. Howard, 32 Vt. 380, 404; 1 Greenl. Ev. 14 ed. sec. 102; Com. v. Wood, 11 Gray, 85. The opinion of the witness, founded on the conditions observed by him, that there had been a recent miscarriage, was admissible also.

3. The defendant’s counsel, not content with cross-examining Dr. McKay in respect of the matters involved in his direct examination, inquired of him as to statements made by the injured woman thereafter, and elicited the fact that when on her way to the hospital she had said to him that the defendant had given her medicine on Wednesday night, and told her the child would come within forty-eight hours. After this the examination was continued in an attempt to show that she had given the name of another person who had given her a powder at her house, and the witness was caused to repeat the declaration relating to the defendant. On the next day the same counsel moved the court to “strike out all the evidence of the witness, on the ground that it is purely hearsay.” This motion related as well to the evidence elicited by the United States as to that by the defendant. As the ’evidence on behalf of the United States was competent, the motion, as made, was properly denied. As the only part of the evidence that was incompetent, under the rule above stated, was that in direct response to questions propounded by the defendant himself, the court was not bound to strike it out, even on a motion to that end, and no other. It was a matter of discretion.

4. The next assignment of error relates to exceptions taken to the action of the court in permitting the district attorney to question the defendant, when a witness on his own behalf, as to his former trials for the commission of crime. As shown in the statement of the case, the witness was compelled to admit that he had been tried on an indictment charging him with the murder of a child, through producing the miscarriage of the mother, and twice found guilty by the jury, though in each instance a new trial had been granted, and the case finally dismissed.

(1) The contention on behalf of the United States, that this evidence is admissible by virtue of sec. 1067 of the Code [31 Stat. at L. 1357, chap. 854] is untenable. That section is found in chapter 25 of the Code, which relates to evidence, and reads as follows: “No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, * * * but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters. In order to prove such conviction of crime it shall not be necessary to produce the whole record of the proceedings containing such conviction, but the certificate, under seal, of the clerk of the Court wherein such proceedings were had, stating the fact of the conviction and for what cause, shall be sufficient.” Though in common parlance one may be said to be convicted when found guilty by the jury, the word in its technical, legal sense denotes the judgment of a court. If the court in the exercise of its undoubted power sets aside the verdict, there is no conviction. Francis v. Weaver, 76 Md. 457, 467, 25 Atl: 413; Blaufus v. People, 69 N. Y. 107, 109, 25 Am. Rep. 148.

(2) It remains to consider whether there are other grounds upon which the competency of the character of the cross-examination permitted in this case can be sustained. Undoubtedly, a wide latitude has been permitted in the cross-examination of witnesses, generally for the purpose of testing their credibility ; and on account of the difficulty of laying down a general rule of observance in all cases, much has been left to the discretion of the trial court. It is also true that one offering himself as a witness on his own behalf subjects himself to the general rules that apply in the case of an ordinary witness offered on behalf of another. There is, however, a marked difference between the relations of the two to the case on trial, that must be taken into consideration. Inquiries that may tend to disgrace an ordinary witness, and thereby discredit his testimony, can prejudice him in no other way; they operate to the prejudice of the party on trial only in that they may lessen the weight of testimony on which he relies. As was well said by Chief Judge Church in an analogous case:

“By taking the stand as a witness, while he may subject himself to the rules applicable to other witnesses, he is not thereby deprived of his rights as a party. * * * Especially ought this protection to be afforded to persons on trial for criminal offenses, who often by a species of moral compulsion are forced upon the stand as witnesses, and, being there, are obliged to run the gauntlet of their whole lives on cross-examination, and every immorality, vice, and crime of which they may have been guilty, or suspected of being guilty, is brought out, ostensibly to effect credibility, but practically used to produce a conviction for the particular offense for which the accused is being tried, upon evidence which otherwise would be deemed insufficient. Such a result is manifestly unjust, and every protection should be afforded to guard against it.” People v. Brown, 72 N. Y. 571, 573, 28 Am. Rep. 183. Many well-considered cases sustain the general doctrine that the fact sought to be elicited from the party ought to be relevant to the issue. People v. Crapo, 76 N. Y. 288, 290, 32 Am. Rep. 302; Hayward v. People, 96 Ill. 492, 503; Buel v. State, 104 Wis. 132, 145, 80 N. W. 78; Bailey v. State, 67 Miss. 333, 7 So. 348; State v. Carson, 66 Me. 116; State v. Gotlfreedson, 24 Wash. 398, 64 Pac. 523; State v. Hale, 156 Mo. 102, 108, 56 S. W. 881; Bullock v. State, 65 N. J. L. 557, 574, 86 Am. St. Rep. 668, 47 Atl. 62; State v. Barker, 68 N. J. L. 19, 27, 52 Atl. 284; Saylor v. Com. 97 Ky. 184, 30 S. W. 390; Clarke v. State, 78 Ala. 474, 481, 56 Am. Rep. 45; Thompson, Trials, Sec. 653.

The prejudicial effect of the admission forced from the defendant by the cross-examination permitted in this case is apparent. He had been shown to be an unlicensed and irregular practitioner, the sign on whose office door gave only a part of his name. The only direct testimony to his commission of the offense was that of the woman, who said she went to his office of her own motion, and asked to have the unlawful act performed. He met this by his practically unsupported denial. It is therefore quite probable that the balance may have been turned against him by the admission that he had not only before been charged with the same offense, but also that the evidence against him had been sufficiently strong to induce two separate juries to find him guilty of the charge.

Proof of the actual commission of the first offense would not be admissible as furnishing evidence of motive in the perpetration of the one for which he was being tried. While such proof, or his admission of the former verdicts, might tend to discredit him as a witness in his own or another’s case, its chief and necessarily damaging effect was to furnish the jury ground for an inference that he was guilty of the offense on trial, from the fact that he had, in all probability, committed a like offense before.

While the statute permitting an accused person to testify in his own behalf in a criminal case is a humane one, the. exercise of the privilege is attended with some dangers, and these should not be increased by such a latitude of cross-examination as was permitted in this case. We are of the opinion that reversible error was committed in overruling the defendant’s objections to this evidence.

5. One question remains that will necessarily arise on another trial. It is contended on behalf of the appellant that the woman, on whose testimony the conviction depends, by procuring or consenting to the unlawful operation, became an accomplice of the accused. The court, entertaining a different view of-the law, denied a special instruction to that effect. He however gave the jury the following instruction: “The jury are instructed that according to the testimony of Sadie Yolk, while she is not an accomplice, strictly speaking, inasmuch as, from her own evidence, she morally implicates herself in the act, the jury should consider that circumstance as bearing on her credibility. And it is also the duty of the jury, in considering all the other evidence in the case, to consider the evidence tending to contradict, or to show that she has made statements conflicting with, her present testimony, as affecting the credit you should give her evidence.”

The offense of procuring the miscarriage of a woman in this District is defined in sec. 809 of the Code [31 Stat. at L. 1322, chap. 851] as follows:

“Procuring Miscarriage. — Whoever, with intent to procure the miscarriage of any woman, prescribes or administers to her any medicine, drug, or substance whatever, or with like intent uses any instrument or means, unless when necessary to preserve her life or health, and under the direction of a competent licensed practitioner of medicine, shall be imprisoned for not more than five yeai’s; or, if the woman or her child dies in consequence of such act, by imprisonment for not less than three nor more than twenty years.”

By its terms, this section applies to the person or persons committing the act which produces the miscarriage, and not to the person upon whom it is committed, notwithstanding it may be done with her knowledge and consent. Not being liable to indictment thereunder, she is not an accomplice in the legal sense. “An accomplice is one who is associated with another, or others, in the commission of a crime. Liability to indictment, under ordinary conditions, is a reasonable test of the legal relation of the party to the crime and its perpetrator.” Yeager v. United States, 16 App. D. C. 356, 359. The offense charged in that case was sexual intercourse with a female under ■sixteen years of age, and the latter was held not to be an accomplice, but the victim of the party committing the act.

Under similar statutes, in many States, it has been held that they do not apply to the woman whose miscarriage has been produced, though with her consent, but solely to the person whose act produced it. She is regarded as his victim, rather than an accomplice. Com. v. Wood, 11 Gray, 85, 93; Com. v. Follansbee, 155 Mass. 274, 277, 29 N. E. 471; State v. Murphy, 27 N. J. L. 112, 115; State v. Hyer, 39 N. J. L. 598, 601; Peoples v. Com. 87 Ky. 487, 490, 9 S. W. 509, 810; State v. Owens, 22 Minn. 238, 244; State v. Pearce, 56 Minn. 226, 230, 57 N. W. 652, 1065; Watson v. State, 9 Tex. App. 237, 244; Hunter v. State, 38 Tex. Crim. Rep. 61, 41 S. W. 602.

The supreme court of Ohio takes a like view of the statute defining the offense, but holds the woman an accomplice by virtue of another provision of the Code, which provides that “whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he was the principal offender.”

The appellant contends that the same rule applies here by •virtue of sec. 908 of the Code [31 Stat. at L. 1337, chap. 854], which reads as follows: “In prosecutions for any crimina] offense, all persons advising, inciting, or conniving at the offense, -or aiding or abetting the principal offender, shall be charged as principals, and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be.” By the common law, all persons who command, advise, instigate, or incite the commission of an offense, though not personally present at its commission, are accessories before the fact, and the object of the aforesaid section was to make all such persons principal offenders. For reasons of public policy it obliterated the common-law distinction between accessories before the fact and principals. Maxey v. United States, ante, 63, 72. The section does not undertake to make one liable as a principal who could not be regarded as an accessory before the fact. As the victim of an unlawfully procured miscarriage was not: an accessory before the fact, she is not indictable as a principal offender. The interpretation of the Ohio statute, given by the supreme court of that State, makes it quite different from the provision in our Code. All other persons procuring or instigating the perpetration of the crime in such manner as to make them accessories before the fact are subject to indictment as principal offenders. Maxey v. United States, ante, 64, 74. But, for the reasons before given, the victim of the crime is not. As the witness Sadie Volk was not an accomplice, the court did not err in refusing the instructions asked by the defendant. The instruction in regard to the credibility of the witness was as much as the defendant had a right to expect.

For the error pointed out, the judgment will be reversed and the cause remanded, with direction to set aside the verdict and grant a new trial. Reversed.