Hays v. State

Grason, J., delivered the opinion of the Court. There was' a demurrer to the indictment which was overruled by the Court below, and during the progress of the trial several exceptions were taken by the appellant to the admission of evidence offered by the State, as also an exception to the ruling of the Court in refusing to permit certain declarations of Louisa Ross, offered by the appellant, to be submitted to the jury, which we shall proceed to consider in their order. It was contended that the indictpient is defective because none of the counts sufficiently negative the proviso of the Act of 1868, chap. 1Y9, under which the indictment was framed. The proviso is in the following words : “ Provided, however, that nothing herein contained shall be construed- so as to prohibit the supervision and management by a regular practitioner of medicine of all cases of abortion, occurring spontaneously, either as the result of accident, constitutional debility, or any other natural cause; or the production of abortion by a regular practitioner of medicine when, after consulting with one or more respectable physicians,* he shall be satisfied that the fcetus is dead, or that no other method will secure the safety of the mother.” ⁶⁴⁷ Without stopping to inquire whether, looking to the Act and its proviso, it was necessary in this case to negative the proviso, we are clearly of opinion that each count of the indictment does sufficiently negative the proviso.

The Act makes it a criminal offence for any one to cause an abortion, unless it is caused by a regular practitioner of medicine, and even he is prohibited from causing it except under the circumstances particularly mentioned and described in the proviso. The indictment expressly negatives the fact, that the defendants, who were jointly indicted, were regular practitioners of medicine. It followed, therefore, as a necessary consequence, that they did not come within the proviso, and were not authorized, under any circumstances, to cause abortion. The demurrer was therefore properly overruled.

The first exception was taken to the admission in evidence of the paper found in a box in Louisa Eoss’ drawer, two days after she left her home at Beaver Creek. The paper was objected to on two grounds ; first, because it was not sufficiently identified as the paper which was handed to her by McCauley on the 14th August; and, secondly, because no evidence had been offered, up to that stage of the trial, tending to prove a conspiracy or combination between McCauley and the appellant, and therefore no act, declaration or letter of McCauley was admissible in evidence against her, and there was no offer to follow up the introduction of this paper with further evidence to connect the appellant with the crime. Mrs. Eoss testified that she could neither read nor write, hut that she saw McCauley hand Louisa Eoss a piece of paper the day before she left her home, and that she put the paper in a box in her drawer, and that the Sunday after she left home, the witness found the paper, offered in evidence, in the same box and drawer into which Louisa had put it, and in which there were no other papers ; that she believed it to be the same paper, which was given by ⁶⁴⁸ McCauley to her daughter, because it looked like it had been torn from a blank-book ; that she had observed blue lines upon it, and that it had not been torn straight; that she and her husband had been the only occupants of the house in which they lived, after Louisa left, and that the latter had left home on the day designated in said paper, and had gone in the direction therein 'mentioned. It was further proved that Mrs. Ross, upon finding the paper, handed it to Annie Ross to read.

Annie Ross then proved that the paper, so handed to and read by her, was the same paper then proposed to be offered in evidence. In connection with the offer of the said paper, the State further offered to prove that McCauley was seen with Louisa Ross, the same evening she left her home, in Hagerstown, six miles from her home. The Court admitted the paper to be read to the jury with an instruction from the Court that, if they believed it to be the same paper given by McCauley to Louisa Ross, then it was evidence tending tó show the circumstances under which she left her home, and by whom induced to leave it; but that, if they were not satisfied of the identity of the paper as that given by McCauley to Louisa Ross, then they should” not consider it at all. There was certainly evidence tending to prove that the paper offered was the same that was given by McCauley to Louisa Ross on the 14th August, and it was manifestly proper for the Court to submit that evidence to the jury, especially when so carefully guarded by the instruction accompanying its submission.

It does appear that, at the time this paper was submitted to the jury, no evidence had been introduced to connect the appellant with McCauley, or with the commission of the offence charged in the indictment, and it does not appear from the record, that the offer of the paper was accompanied by an offer to follow it up with further evidence, tending to prove a conspiracy or combination between McCauley and the appellant, to produce an abortion upon ⁶⁴⁹ Louisa Ross. If such an offer had accompanied the offer of the paper, the latter would have been properly admissible, and if the State had failed to introduce further proof tending to connect the appellant with the crime, the Court would, on motion of the appellant’s counsel, have withdrawn said paper from the jury, and instructed them not to consider it in making up their verdict. The record shows however, that evidence was introduced during the progress of the trial, to prove that there was a conspiracy between McCauley and the appellant, to produce an abortion upon Louisa Ross. One of the witnesses swore, that the appellant told her in June, that she expected a girl from Beaver Creek, to arrive at her house to be operated upon, to have her baby put away, but did not state the name of the girl.

It was further proved, that on the evening of the day, on which Louisa Ross left her