189 Wis. 26 | Wis. | 1926
It is first contended by the defendant that the evidence does not support the verdict. ' The verdict convicted the defendant of an offense under sec. 351.22, Stats., which reads:
“Any person who shall administer to any pregnant woman, or prescribe for such woman, or advise or procure any such woman to take any medicine, drug or substance or thing whatever, or shall use or employ any instrument or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman shall be punished by imprisonment in the county jail not more than one year nor less than six months or by fine not exceeding five hundred dollars nor less than two hundred and fifty dollars, or by both such fine and imprisonment in the discretion of the court.”
It is contended that the evidence failed to show that the deceased was pregnant on the evening of December 30, 1924. It is true that physicians who testified in behalf of the State were unable to say from the examination of the uterus made after death that it was a pregnant uterus on the evening of December. 30th, or at any time recently prior to her death. They testified quite generally that the uterus was enlarged; that that was one indication of pregnancy, but that it was a condition that might result from other causes. Dr. Bunting testified to many facts concerning the uterus, and expressed the opinion, without any reservation, that it “was a pregnant uterus, from which the major part of the foetus — practically the entire part of the process of conception — had been removed.” It may be readily conceded that if it were necessary to establish this fact by the testimony of the physicians alone, the finding of pregnancy would rest very much in doubt. However, there are many other circumstances disclosed by the record which do establish very satisfactorily the fact that the deceased was pregnant during the time she was in the doctor’s office immediately preceding her death.
We have, therefore, a woman who, concededly, believes herself pregnant, repairing to a doctor’s office concededly for the purpose of treatments by that doctor, and we have the further conceded fact' that, while in his office, there was an actual invasion of the womb. In the light of all these facts the conclusion is permissible if not irresistible that the deceased was in a pregnant condition when she went to the doctor’s office on Monday evening. In addition to that we have the testimony of the mother, the testimony of the girl chum, the testimony of the young man who was responsible for her condition, and the dying declaration of the deceased received in evidence without objection or limitation. In view of all these facts, the contention that the finding of pregnancy of the deceased is not supported by evidence is quite guileless.
The defendant attempted to show by the testimony of Mrs. Lampert and Mrs. Sebora, the two women who testified they were present in the doctor’s office both on Tuesday night and Wednesday morning (a rather singular coincidence), that the deceased had talked to them on prior occasions' about her pregnant condition, and that she told them
It is further argued that the court committed error in refusing to strike out certain testimony of the witness Margaret Fenrich. It will be remembered that Margaret Fen-rich was the girl chum of the deceased who testified the deceased told her she was going to the doctor’s office Friday night to receive her first treatment for her pregnancy. In her direct examination this testimonj'- is positive and unequivocal, and was admitted upon the authority of State v. Dickinson, 41 Wis. 299. Upon cross-examination she was asked concerning her knowledge, generally, of the visits made to the doctor’s office during the spring and summer. She was questioned thus:
"Q. You knew that she went there frequently? A. Yes, sir. Q. Almost every night? A. Yes, sir. Q. And every noon? A. Yes, sir. Q. Beginning last spring? A. Yes, sir. Q. Did you know what her treatments were for? A. Yes, sir. Q. A venereal disease? A. Yes, sir, and pregnancy. Q. She told you the pregnancy was back in the spring, is that right? A. The first few times she went it was for a disease, then the pregnancy was discovered, and I don’t know just what she was going for after that, but I thought it was for the same thing.”
The defendant’s attorney moved to strike out the latter part of the last answer, “but I thought it was for the same thing.” The court refused to strike it out. Of course it should have been stricken out, but the refusal to do so cannot work a reversal. It was a trifling matter and could have had no effect upon the verdict. It in no manner qualified her direct testimony where she testified the deceased told her she was'going to the doctor’s office Friday night for her first treatment for pregnancy.
Upon cross-examination defendant admitted that fifteen, or twenty years ago he had been convicted of a violation of sec. 5480 of the federal statutes. He was permitted to
Error is further predicated upon the fact that the court erred in not permitting counsel to make an argument to the jury based upon the testimony of Mrs. Sebora and Mrs. Lampert, to the effect that the deceased used a crochet hook a number of times upon herself to bring about a miscarriage, or to induce flowing. Counsel point out that some testimony of this kind crept into the record notwithstanding the fact that the court all along insisted that such testimony was inadmissible. During arguments of counsel, and while he was dwelling upon this testimony, the court said: “I do not recall that there was anything received in evidence to the effect that this girl prior to this time had attempted to produce a miscarriage upon herself. I do not recall that
' Another assignment of error is based upon the following circumstance: The information was filed originally against O. E. Werner. and Cecilia Herter, a woman who was the doctor’s attendant.. Upon motion of the defendant, separate trials were granted. Cecilia Herter was not called as a witness by either party. In his argument to the jury the assistant district attorney commented upon the fact that the defendant, had not called Miss Herter to testify in his behalf. Objection to this line of argument was overruled by the court. Sec. 4071, Stats., provides that “In all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness; but his
This disposes of all detailed assignments of error. We have slighted none of them. Each and every one has received our serious consideration. We recognize this as an important ■ case and one fraught with serious consequences to the defendant, but we believe that justice has been done.
By the Court. — Judgment affirmed.