67

accused was advised it was necessary, is on him as facts peculiarly within his own knowledge." He need not establish its necessity beyond a reasonable doubt."8

§ 348. Declarations of present pain and suffering and dying declarations by the victim.-The declarations of the victim are not generally admissible unless they are so far contemporaneous with and explanatory of an act or transaction already in evidence that they may be received as a part of the res gesta," or unless they consist of exclamations or ejaculations of present suffering uttered during the lying-in. If the woman not only consents to the operation, but actually seeks and adopts means in furtherance of it, her declarations may be admitted against the accused as the declarations of a fellow-conspirator made to promote the common design." They should be admitted in his favor where

70

Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

That the accused thought the operation was necessary is irrelevant. Hatchard v. State, supra.

State v. Stevenson, 68 Vt. 529, 35 Atl. 470; State v. McCoy, 15 Utah 136, 49 Pac. 420; State v. Lee, 69 Conn. 186, 37 Atl. 75. As to the necessity of the operation see, also, State v. Watson, 30 Kan. 281, 1 Pac. 770; State v. Glass, 5 Ore. 73.

Scott v. People, 141 Ill. 195, 214, 30 N. E. 329; State v. Gedicke, 43 N. J. L. 86, 89; Commonwealth v. Leach, 156 Mass. 99, 101, 30 N. E. 163; Clarke v. People, 224 Ill. 554, 79 N. E. 941, holding that statements of the victim of a murder resulting from an abortion to a physician in a prior illness as to how such prior illness was the result of an abortion are hearsay. 70 People v. Aikin, 66 Mich. 460, 475, 33 N. W. 821, 11 Am. St. 512; Rhodes v. State, 128 Ind. 189, 191, 27 N. E. 866, 25 Am. St. 429. "These declarations were made by her to the physician at the time he was called upon

as an expert to determine the state of her health, and were statements of her bodily feelings, and the symptoms of her supposed pregnancy. This evidence was admissible * * * from the necessity of learning from the patient herself facts within her own knowledge, which the physician should know to form an intelligent and accurate opinion of her present health and situation. The usual symptoms of pregnancy in its early stage must be obtained from the patient herself, such as the obstruction of the usual course of nature, morning sickness, head-ache, nervousness and other indications hidden from the observation of others." State V. Gedicke, 43 N. J. L. 86, 89; People v. Aikin, 66 Mich. 460, 475, 33 N. W. 821, 11 Am. St. 512; Hays v. State, 40 Md. 633, 651; Weightnovel v. State, 46 Fla. 1, 35 So. 856. (Declaration by deceased that she was going to stay at defendant's house for an operation.) "Solander v. People, 2 Colo. 48,

71

62-64.

2

he alleges that when he first met her as a physician she was suffering from a miscarriage and that he operated on her in good faith in company with another physician. The fact that the victim is dead does not admit her declarations. They will not be received as dying declarations, though possessing all the characteristics which would admit them in a trial for homicide.73

§ 349. Evidence of the woman's physical condition and illnessDirect and circumstantial evidence.-The evidence will be permitted to take a wide range. Facts elicited by a post mortem are always admissible to prove the corpus delicti. But evidence of the victim's pregnancy, her medical treatment, the appearance of her bed and clothing," and her physical condition,76 her health and spirits, and her relations, including acts of sexual intercourse's with the defendant or with one accused of being an accessory,"

74

72 State v. Fuller (Ore., 1908), 96 death of the woman is by statute an Pac. 456.

73 Underhill on Ev., p. 141. See also, § 106; Maine v. Feople, 9 Hun (N. Y.) 13; State v. Harper, 35 Ohio St. 78, 35 Am. 596; Railing v. Commonwealth, 110 Pa. St. 100, I Atl. 314. In Massachusetts, by St. 1889, c. 100, dying declarations are admissible. Commonwealth v. Homer, 153 Mass. 343, 344, 26 N. E. 872. And other declarations are received to show that the former were made under a sense of impending death. Commonwealth v. Cooper, 5 Allen (Mass.) 495, 497, 81 Am. Dec. 762; Commonwealth V. Trefethen, 157 Mass. 180, 184-188, 31 N. E. 961, 24 L. R. A. 235; Commonwealth v. Thompson, 159 Mass. 56, 59, 33 N. E. III. In Maryland a statement by the woman accusing the accused of having committed the abortion was received as a dying declaration. Hawkins v. State, 98 Md. 355, 57 Atl.

indispensable element of the crime charged against the accused. State v. Fuller, 52 Ore. 42, 96 Pac. 456. See also, Elliott Evidence, § 2770; 86 Am. St. 666, note; 63 L. R. A. 916, note.

75

'People v. Olmstead, 30 Mich. 431. 78 Commonwealth v. Follansbee, 155 Mass. 274, 29 N. E. 471.

"Commonwealth v. Wood, 11 Gray (Mass.) 85, 91; Hays v. State, 40 Md. 633; State v. Fletcher (N. J. L.), 72 Atl. 33.

78 Scott v. People, 141 Ill. 195, 211, 30 N. E. 329,

79 State v. Carey, 76 Conn. 342, 56 Atl. 632, to show motive for employment of principal.

subsequent to the date of the alleged abortion, is always admissible."

82

It need not be shown that the defendant knew the woman was pregnant. If the intent to produce a miscarriage is present, it is enough that the defendant may only have had a mere suspicion that pregnancy existed.81 But evidence that the defendant had or had not a knowledge of the woman's pregnancy is relevant to support or to rebut a presumption of an abortionary intention. Evidence that the defendant advertised he would procure abortions, that several months prior to the alleged offense he had articles in his possession which he knew were calculated to produce an abortion, that he supplied the woman with the means of producing an abortion and gave her minute directions how those means were to be employed, is admissible!

84

85

86

Direct evidence that the defendant committed the crime is not demanded. He may be convicted on circumstantial evidence alone, if it is sufficient to convince the jury beyond a reasonable doubt that the woman was pregnant, and that drugs or instruments were used on her by the defendant with a criminal intent.88 But a conviction of having in one's possession instruments intended to cause

87

80 Commonwealth v. Follansbee, 155 Mass. 274, 277, 29 N. E. 471. In People v. Aikin, 66 Mich. 460, 33 N. W. 821, 11 Am. St. 512, it is said, “a history of her illness from the very beginning to the end, in detail, was most proper, and perfectly legitimate to prove the corpus delicti, and what the respondent did and said in connection with such illness while in the house attending upon the sick girl was properly a part and parcel of such history."

81 Powe v. State, 48 N. J. L. 34, 36, 2 Atl. 662.

82 Scott v. People, 141 Ill. 195, 211, 30 N. E. 329; State v. McLeod, 136 Mo. 109, 37 S. W. 828; People v. Hagenow, 236 Ill. 514, 86 N. E. 370.

3 Weed v. People, 3 Thomp. & C. (N. Y.) 50; People v. Sessions, 58

Mich. 594, 26 N. W. 291; Feople v.

an abortion cannot be sustained by proof of the possession of an instrument which, though often used for that purpose, was made and designed for a different one."

89

§ 350. Expert testimony of physicians-Evidence afforded by the post-mortem.-A physician, if properly qualified, may, it seems, testify to the result of his examination of the person of the woman," testify to the time required to produce an abortion," that in his opinion an abortion had been procured, and that death had resulted therefrom," that traces of an abortion would remain if one had been committed or attempted," as to the kind of instrument and the mode of using it which would produce the condition in which the woman was found," and that certain drugs, or instruments, which the jury may be permitted to inspect, were popularly supposed to be calculated to produce an abortion. While a physician who made a post mortem examination is undoubtedly a competent witness to any of the above matters, his is not the best nor only proper evidence and any competent medical man may testify. The expert may testify that it is impossible for any woman unaided to have produced an abortion upon herself by the use of a certain instrument. Then

98

96

S9 State v. Forsythe, 78 Iowa 595, 597, 43 N. W. 548. Evidence that articles adapted to procure an abortion were found in the abode of the defendant is admissible. Commonwealth v. Tibbetts, 157 Mass. 519, 521, 32 N. E. 910. It is not necessary to prove that the defendant used all the instruments alleged in the indictment. It is enough to prove that one of them was used. Scott v. People, 141 Ill. 195, 210, 30 N. E. 329; Rex v. Phillips, 3 Camp. 73; Rex v. Coe, 6 Car. & P. 403; Moore v. State, 37 Tex. Cr. 552, 40 S. W. 287.

90 Thomas v. State, 156 Ala. 166, 47 So. 257.

"People v. McGonegal, 136 N. Y. 62, 75, 32 N. E. 616.

Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; Common

wealth v. Thompson, 159 Mass. 56, 33 N. E. 1; State v. Wood, 53 N. H. 484; Stevens v. People, 215 Ill. 593, 74 N. E. 786.

93

Commonwealth v. Thompson, 159 Mass. 56, 59, 33 N. E. 1111; People v. Hagenow, 236 Ill. 514, 86 N. E. 370.

4 Bathrick v. Detroit &c. Co., 50 Mich. 629, 16 N. W. 172, 45 Am. 63. 95 Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799.

Da Williams v. State (Tex., 1892), 19 S. W. 897; Carter v. State, 2 Ind. 617.

under the rule that where an opinion has been given that, in the nature of things, a certain thing is impossible, a woman may testify that she has used such an article upon herself for a legitimate purpose. To explain and emphasize his evidence the physician who made the post mortem may exhibit parts of the body preserved in spirits to the jury.

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100

$ 351. Exception to rule regulating privileged communications to physician. The question may arise are communications made to a physician by the victim of an abortion privileged so that the physician may decline to disclose them? It is well settled that the statutory privilege cannot be invoked for the sole purpose of shielding a criminal. And though the accused, being a physician, may refuse to testify at all, yet, if he go on the stand, he cannot claim the professional privilege. A distinction is made by the cases as regards the testimony of a physician who has treated the woman after the commission of the alleged crime. If she is living the law forbids the physician to disclose any fact that he may have learned while attending her professionally, for the reason that his statement inevitably tends to convict her of a crime and to discredit and disgrace her. If, however, the woman is dead this evidence cannot incriminate her, though it may disgrace her memory, and on this account the physician may speak. And, generally, a physician who was consulted as to the best mode of procuring an abortion may state what was said by him and the person who consulted him and what was done by him if anything.3