26 A.2d 770 | Md. | 1942
Dr. Allen B. Wilson, a physician of Hagerstown, was found guilty by a jury in the Circuit Court for Washington County on the charge of unlawfully causing a certain drug to be used by Frances Jane Stanley on August 9, 1941, for the purpose of causing abortion. Code, 1939, Art.
Mrs. Stanley, a resident of Pennsylvania, twenty-one years old, testified that she was married in June, 1941, and that she called at Dr. Wilson's office on July 31, when he administered a salve which he claimed would produce a miscarriage within twenty-four hours. As the miscarriage did not occur, she returned to his office on August 5, when he gave her another treatment. Suffering severe pains on August 8, she went to Hagerstown *3 again, arriving there about three o'clock on the morning of August 9. Dr. Wilson gave her pills to alleviate her pain, and shortly afterwards a miscarriage occurred. She swore that she paid him $110 for his services.
Dr. Wilson complains because Mrs. Stanley testified that she saw him in November, 1940, and when she saw him again on July 31, 1941, she said to him: "I guess you know what I am here for." He contends that this testimony prejudiced the jury against him, because they could infer from it that he caused an abortion in November, 1940. It is a general rule that when a person is placed on trial for an offense, he should not be prejudiced by the introduction of evidence of other independent acts of wrongdoing. But while guilt cannot generally be established by proving that the defendant has committed other crimes, nevertheless it is firmly established that evidence of declarations and acts may be admitted to show intent, or a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Young v. State,
Evidence of declarations and acts, which are an immediate accompaniment of the act charged and so closely *4
connected with the main fact as to constitute a part of it, and without which the main fact might not be properly understood, are admissible as a part of the res gestae. The test as to whether a declaration or act offered in evidence is part of the resgestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of time, but by casual connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it. People v. Jarvis,
The appellant also complains because the trial court admitted in evidence a small box and tube, which were marked "Luenbach's Paste," found in his office on the morning of his arrest. It is well settled that a drug alleged to have been used for the purpose of abortion is admissible in evidence, if it was provided and used under the directions of the defendant. State v.Sharpe,
It is improper, of course, to admit a drug in evidence merely on the testimony of an expert that it is possible to use the drug for the purpose of performing an abortion, without any showing of some connection of the drug with the perpetrator or the victim of the crime. Riley v. State,
Dr. S.R. Wells, of Hagerstown, testified that Luenbach's Paste has the effect of irritating the uterus and causing it to contract, thus tending to produce a miscarriage. The appellant objects to this testimony because *6
Dr. Wells has not used Luenbach's Paste and was unable to say what effect it would produce from his personal experience. It is a fundamental principle that, since physicians are experts in medicine, their opinions are admissible in evidence upon questions that are legitimately within their profession and practice. The function of an expert witness is to instruct the jury in matters so removed from the ordinary pursuits of life that accurate knowledge of them can be acquired only by continued study and experience, the object being to enable the jury to judge intelligently of the force and application of the facts introduced in evidence. Coyle v. Commonwealth,
According to the formula printed on the box admitted at the trial below, Luenbach's Paste contains certain percentages of iodine, thymol, tincture of myrrh and tincture of benzoin. Dr. Wells, a graduate of the Medical School of the University of Maryland, was qualified to express his opinion regarding the effect of the drug after he knew its contents, even though he may never have prescribed the drug himself. How much knowledge a witness must possess before he is entitled to express an opinion as an expert is a preliminary question which is left largely to the discretion of the trial court, and its ruling thereon will not be disturbed unless clearly erroneous as an abuse of discretion. Baltimore, Chesapeake Atlantic Ry. Co. v. Moon,
The jury found Dr. Wilson not guilty of administering the alleged drug, but guilty of causing the drug to be used by Mrs. Stanley. The court overruled Dr. Wilson's motion for a new trial, and sentenced him to imprisonment in the Maryland Penitentiary for a term of three years. In the trial of every criminal case in this State, the jury are the judges of both the law and the facts. Maryland Constitution, Art. 15, § 5. Accordingly, the question of legal sufficiency of evidence in a criminal case to sustain a conviction is exclusively for the jury to determine. The Court of Appeals has invariably refused to pass upon the question of sufficiency of evidence to establish the commission of a crime with which a defendant has been charged, for otherwise the constitutional function of the jury would be usurped. Where *8
there is no reversible error in the rulings of the trial court, the verdict and judgment must stand. It is well settled that the grant or refusal of a motion for a new trial is discretionary with the trial court in criminal as well as civil cases, and from an order overruling such a motion no appeal will lie. Archer v.State,
Likewise, the legal sufficiency of evidence upon which to base a conviction cannot be tested on a motion in arrest of judgment, for such motion must be determined solely from the record, and not from the evidence admitted at the trial. Coblentz v. State,
Judgment affirmed, with costs.