Damm v. State

Boyd, C. J., delivered the opinion of the Court. The appellant was convicted of manslaughter by abortion.. Pour bills of exception to rulings on the evidence are in the record, but the second and third, which related to a dying-declaration of Mrs. Sutton, the deceased woman mentioned: in the indictment, were abandoned. The only questions, therefore presented to us for review are those contained rathe first and fourth bills of exception.

E'irst. Dr. Littlefield, a practising physician in Cumberland, testified that he was called to a private house in that: city about 11:30 P. M. on Sunday, the 21st of March, 1915 ;• that he was introduced to Mrs. Sutton, and on examining her he found her very sick. He was then asked to “tell the nature of her illness and how she was suffering to the jury ?”, and he answered: “Prom the symptoms I made a diagnosis-of ‘¡Septic Abortion.’ Her pulse was 140, respiration 24,, temperature 104-6/10. She gave a history of having something introduced into her uterus the day before, and the day-before that.” The record then states: “To which answer the defendant-objected; the objection was overruled by. the Court.

To-which ruling of the Court in allowing answer to be admitted, and to stand, the defendant excepted and prayed the Court to sign this, his first bill of exception,” and the bill then concluded in the usual way—-being signed by the two judges who sat. The record then proceeds: “Continuing, the said! witness testified as follows: The diagnosis I made was that she was aborting; there was blood poisoning. She- stated she-had an instrument introduced into her womb- on Saturday,, that is the preceding day, in the morning, and Friday, in the morning. She was bleeding Saturday afternoon, and Sunday until sometime in the afternoon.

Then bleeding sud ⁶⁶⁷ denly ceased. She had a chill, a severe headache and became violently ill. She was extremely tender over the right, lower part of her abdomen.” The witness was then examined at length by the State’s Attorney and on cross-examination. There was no exception noted to the part of the testimony quoted above—beginning “Continuing, the said witness testified as follows:” In that he said, “She stated she had an instrument introduced into her womb on Saturday, that is the preceding day, in the morning, and E'riday, in the morning.” It was contended by the State that even if there was error in the ruling stated in the exception, it was. not reversible error as it was repeated without objection in the subsequent evidence of the witness.

It is also urged by the State that inasmuch as the dying declaration was .subsequently admitted and it fully covered and included what was objected to in this exception, no possible injury was done the accused and hence there was no reversible error, even if it. be conceded that the statement of the witness as to something having been introduced in her womb should have been excluded. Technically the testimony set out in the record after the signatures of the judges in the first hill of exceptions may he said to have corrected the alleged error1 in permitting the witness to say, “She gave a history of having something introduced into her uterus,” etc., as apparently that went in without objection. Tbe exception states, “To which answer the defendant objected,” etc. The answer there excepted to was, as the exception is drawn, what precedes the conclusion of the bill of exceptions, but assuming that so much as followed as a part of the answer to the question which elicited the answer was intended to he included in the exception, it. seems to us to be clear that if we concede that it was error to permit the witness to speak of the history of “'having something introduced into her uterus,” it was harmless error. At a time when there can be no doubt about the admissibility of the statement of the deceased woman, as a dying declaration, and as we have seen the exceptions to its admissibility ■were abandoned, the following testimony was given—Er. ⁶⁶⁸ Littlefield still being on tbe stand—“Q. Proceed and give the whole declaration ?

A. She said she had visited the office of Dr. William G. Damm on South Mechanic street, giving dates. Q. What dates were they? A. March; preceding days to what I saw her; March 19th and 20th, to the best of my recollection, and that he had introduced an instrument into her womb. I asked her if she was alone with him at the time; she said she was; and I asked her to describe the man, to give a brief description.

Q. What did she say about the description?' A. I asked her what she had paid him— That is in the declaration which I mentioned. Q. Did she state at that time what she paid him? A. Yes; twenty-five dollars ($25.00) for the first visit, and five dollars ($5.00) for the next visit.” After some further testimony as to the description of the doctor and reference to a written declarar tion, which the witness said he wrote and Mrs. Sutton said was correct, and then signed it in the presence of two nurses in the hospital, where she was, the following was introduced in evidence: “I, Mrs. Lee Sutton, knowing that I am about to die, wish to state that Dr. Wm. G. Damm performed a criminal operation on me March 19th, and again on March 20th, 1915.

I know that I am now dying as the result of the operation. Dr. Damm is a middle aged man, wearing a gray mustache, and only he and I were in the office.” That is signed “Mrs. Lee Sutton.” and was witnessed by the two nurses and Dr. Littlefield. On cross-examination the fact that an autopsy was performed by Dr. Littlefield, assisted by Dr. Olaybrook was brought out. He said they found what looked as if it had been a puncture.

He said: “There was no hole there at the time I had the autopsy; simply a highly hemorrhagic tract” —that “after I found the hemorrhagic tract, I took a knife .and followed it up.” This witness was examined at great length on cross-examination. He said he first saw her March 21st and a collapse came the evening of April 8th. The latter was the date when she signed the declaration. Dr. Littlefield said she told of what Dr. Damm had done seven ⁶⁶⁹ or eight times.

The two nurses also testified as to the dying declaration, which was signed on Thursday, and she lived until Saturday. On the latter date she told Dr. Littlefield that she recalled the declaration and it was correct. When all of these facts are taken into consideration it is not possible to perceive any injury that could have been done the appellant by the statement made by Dr. Littlefield which-is objected to, if it be conceded to have been error in allowing it to remain in. He did not then state who she said had introduced the instrument and was only giving it in explanation of his diagnosis.

It was not offered to prove the fact of- the introduction of the instrument, but merely mentioned by the doctor in connection with his diagnosis. If the deceased had died without making any statement which could' properly have been introduced as a, dying declaration, then-assuming, as we are now doing, that there was error in this ruling, it might be said to have been injurious error and hence reversible, but inasmuch as it is shown without objection—indeed brought out on crossrexamination by the appellant—that Mrs. Sutton spoke of the matter to Dr. Littlefield six or seven times during her stay in the hospital, to which-she was removed the night he first saw her, and as her statements made under circumstances that justified their admission are dying declarations were offered in evidence to prove the fact, we can not see how it was possible for the accused to have been injured by the answer of Dr. Littlefield included in the first bill of exceptions. Many decisions of this Court might be cited to show that when evidence is admitted over the objection of an appellant, which was inadmissible, if the same evidence is afterwards admitted without objection it is treated as harmless error. If then its admission be improper at first by reason of conditions not being shown which authorized its admission, but afterwards conditions were clearly proven which make it admissible beyond question, and it is so admitted and repeated, not merely once-but a number of times, without objection and without any grounds upon which objection could have been founded, how is it possible to say that there was injury as well as error? ⁶⁷⁰ That would be so, even if it had originally been admitted for the purpose of proving the faot, and there is certainly much less, danger of injury when it is merely stated by a physician in explanation of a diagnosis he made.

Possibly there might be circumstances where it could be said that there was danger of the jury treating the evidence which was inadmissible at the time as corroborative of it when it was properly admitted. But it would be altogether improbable that such a statement of a person then dead narrated by a physician in explaining his diagnosis, would have any effect upon the minds of jurors, or make any impression on them, after they had heard repeated over and over again much stronger and more definite statements of the same facts as coming from that same person, which were made at a time which must and does carry more weight than under almost any other circumstances. If dying declarations are made under conditions which relieve them of doubt as to whether the declarants fully understood' what they were saying and of danger of their having been misled or in any way imposed on, no species of evidence is usually more convincing. It would indeed be a herculean, not to say impossible, task to convince a jury that the statements of a woman, when she knew she was dying and who according to the uncontradicted evidence of a physician and two nurses, was perfectly conscious, were false, if they could be influenced by a statement made by her as the one in this exception was.

It therefore seems to us impossible that any injury was or could have been done the accused by that ruling. ■ In Meno v. State, 117 Md. 435, evidence that the accused, who was being tried on a similar charge to this, had been guilty of other acts was held to be inadmissible, but as we thought the answer of the witness “was so vague and inconclusive that the traverser can hardly have been injured thereby,” we said we would not reverse the judgment for that error alone. The case of Avery v. State, 121 Md. 229 , was a criminal case in which we said there can be no reversal for error without injury, and the rale is too thoroughly established to require us to cite other eases. ⁶⁷¹ We are therefore of opinion that, conceding the ruling in the first exception to have been erroneous, it was not reversible error for the reasons we have given. It may be well to add that we find that the weight of authority seems to be against permitting a physician to testify as to what the witness said as t-o the cause of the injury or the instrument used, unless of course it is a dying declaration or there be something which calls for the statement—for example, when on cross-examination a physician who has given his diagnosis of a case is asked upon what he based it. The decisions are by no means in harmony, and some of those which hold that evidence of the statement by the patients to the physician of the cause of the injury or the instrument used can not be given by the physician. are not based on very satisfactory grounds, but we believe the weight of authority sustains that view.

See 24 Am. & Eng. Ency. of Law 670; 16 Cyc. 1162, 1165-66; 3 Chamberlayne on Modern Law of Ev., sec. 2635; 1 Wharton on Cr. Ev., sec. 271; Hays v. State, 40 Md. 633 ; McCeney v. Duvall, 21 Md. 166 . The case of Baltimore v. Hurlock, 113 Md. 674 , was much relied on by the State but it does not altogether meet the question.

Inasmuch as the question intended to be raised was fully argued we have considered it, but as the exception is presented it does not show error on the part of the Court. The whole answer was objected to, and the exception was to the ruling of the 'Court in allowing “answer to be admitted and to stand.” The whole answer was not objectionable, even according to the contention of the appellant, and hence it could not have been stricken out as a whole. The objection should have been made to the particular part deemed objectionable, or a motion made to strike out that part. There was therefore no error in the Court’s ruling as presented by the first bill of exceptions.

Second. The only remaining exception which is pressed is the fourth. That arose in this way: Dr. Charles S. White of Washington was called as an expert. He arrived in Cumberland after Dr. Littlefield had testified, but he