Conaway v. State

⁵⁴⁸ Ofitjtt, J., delivered the opinion, of the Court. May Conaway was indicted, tried, and convicted of the crime of abortion, in the Criminal Court of Baltimore City, and sentenced to three years in the Maryland Penitentiary, and from that judgment she has taken this appeal. In the course of the trial Dr. Street, a witness for the State, having testified that he had examined the woman upon whom an operation inducing the abortion had been performed and that she appeared to have had a “miscarriage or an abortion,” Was asked: “Would there have been any evidence or any marks that you could have seen when you saw the patient if an abortion had been produced by the use of a bougie ?” and he replied: “Not necessarily.” He was then shown an instrument of some kind and asked the question: “What is this instrument, Doctor? Are you familiar with it?” There was no objection to the question, and he answered': “I guess that you would call that a bougie, as far as I know.

I don’t — so far as I know, it is a bougie, but you could use it also as a catheter. It is an instrument I am not very familiar with.” Counsel for the defendant then made this motion: “I ask that the answer be stricken out. I ob-jest to that and I ask the Court to rule out the answer, because I do not know what the object of my distinguished friend is in singling out one of many instruments here and asking him what it is and what the use of that is when it has not. been, shown, sir, I respectfully submit, which one was used in this case, whether it was one of the rubber ones or one of the metal ones, or what.” The court overruled the motion,-and at 'the same time, stated that his recollection'was that “‘the young; woman had-identified them,” and he added that he understood that, while she had not identified the instrument shown the witness, the instrument used was one of the same kind. Then follows this exception: “Your Honor will' kindly allow us an exception.

Whereupon the traverser, by her counsel, objected to the question, which question tbe court overruled and'allowed the witness to answer, to which ⁵⁴⁹ action of the court in overruling said objection and allowing the question to be answered, the defendant excepted.” This is the first and only exception contained in the record, and the testimony to which we have referred is all the testimony contained in the record, although it appears that other testimony referring to the instruments used in connection with the crime was taken at the trial which is not before us. In