SUMMARY: Marian Blyth, age 25, died April 25, 1946 from complications of an abortion perpetrated by Dr. Philip T. Campbell Pottawattamie County, Iowa.
Dr. James C. Anderson was charged with murder in the second degree for having performed a fatal abortion on 25-year-old Marian Blyth on April 23, 1946. She died of her injuries two days later.
The case was tried, and on October 5, 1946 the jury returned a verdict finding the defendant guilty of murder in the second degree. Anderson immediately appealed for a new trial on the grounds that his jury of 11 women and 1 man was prejudiced against him.
Mamie Walker stated that she was not acquainted with Anderson; that she had read about the case in the papers and had discussed it with friends and acquaintances; that she thought she had formed an opinion about Anderson’s guilt but did not believe that this would interfere with her acting as a fair and impartial juror. But on cross-examination she said that it would take evidence change her mind about Anderson’s guilt. Anderson’s lawyer challenged the juror for cause but the court overruled the challenge. Three other jurors likewise indicated that they believed Anderson was guilty but if presented with evidence would change their minds. Those jurors were likewise challenged and the challenges were likewise overruled by the court. The appellant court held that Anderson’s attorney was too vague in challenging the jurors, merely stating, “The plaintiff challenges the juror for cause.”
Before Anderson could be convicted of the offense charged, the State must show by the evidence beyond a reasonable doubt, all of the following: (1) A willful use of instruments or other means upon the decedent, Marion Blythe (2) that he used such instruments or other means with the intention to procure a miscarriage on the said Marion Blythe (3) that such miscarriage was not necessary to save her life, and (4) that Marion Blythe died as a result of said miscarriage.
In order to determine whether or not there was in the record sufficient evidence to justify the court in submitting the case to the jury, we will examine the evidence as set forth in the record.
There was in the record evidence from which the jury could find that the appellant was a licensed physician and surgeon, fifty-eight years of age; that he was admitted to practice in 1909 and in April 1946 his home was in Omaha, Nebraska.
Evidence in the trial indicated that Marian lived with her mother in Council Bluffs, and was employed in a bus station in Omaha. She left her home on April 22, 1946 about three p.m. and returned home about six p.m.; remained home all that evening and worked at the family ironing from 7:30 to 11 p.m.; then went to bed and remained at home until 11:30 a.m. April 23.
Marian called Anderson’s office at about two p.m.; that she appeared to be in normal health and made no complaint to her people of pain or illness; that an examination revealed that she was about four and one-half months pregnant; that she had been there about a week previous to April 23 for an examination; that on April 23 when she returned to appellant’s office she paid him $400 in cash, four one-hundred-dollar bills.
Anderson used instruments in various parts of Marion Blythe’s womb pulling down the cervix, using a spectrum in the vagina, and by using a small probe packed a one-inch bandage into the cervix; that the purpose of placing the gauze pack was to produce labor and to procure a miscarriage; that following this, appellant called a taxi and directed the driver to take Marion Blythe to the residence of Jesse and Eva Middleton at 2411 South Twenty-third Street, Omaha, Nebraska.
When Marian arrived at the Middleton home she did not appear ill and did not complain of pain. Anderson had a working agreement with Mrs. Middleton for taking care of various patients of his and that this had existed for about a year and a half. For a number of years Anderson had a working agreement with Dr. Campbell of Omaha to care for patients sent to the Middleton home by appellant.
There is evidence that on Thursday forenoon April 25, 1946 about nine a.m., appellant saw Marion Blythe at the Middleton home; that Dr. Campbell was there; that they examined her; that they found that the fetus had passed, but not the afterbirth; that the girl was placed on an obstetrical table belonging to appellant and that appellant removed the afterbirth; that Marion Blythe died during the afternoon of April 25, appellant being notified by Dr. Campbell; that the two met at the Middleton home about midnight and discussed the disposal of the body.
Middleton insisted that the body be taken from his home and Anderson and Campbell stated that it would be thrown in the river. Anderson and Dr. Campbell put the clothing on Marian’s body and carried it out into the alley and placed it in the turtleback of Anderson’s automobile which Anderson drove across the river into Council Bluffs. After some discussion, they drove down on what is called the Manawa Road and stopped on the South Omaha Bridge where Anderson, Campbell, and Middleton threw Marian’s body into the Missouri River at about one a.m. April 26, 1946.
There was evidence that during the night and the trip, Anderson and Campbell indulged freely in the use of intoxicating liquor.
Marian’s body was found floating in the river the next morning, and Dr. George McArdle was called by the coroner of Sarpy County, Nebraska. Dr. McArdle was a practitioner of thirty-two years’ experience as a physician and surgeon and had treated about one hundred and fifty miscarriage cases during that time. He performed an autopsy on the body of Marion Blythe and found no water in her lungs. We quote a part of his direct examination:
Q. Will you tell the jury your opinion as to the cause of the death of the girl that you made an examination and autopsy upon in the Clair Funeral Home on the morning of April 26, 1946?
A. It was an abortion, contributory hemorrhage and acute peritonitis.
After the autopsy, Anderson was taken to the police station in Omaha, Nebraska, and while there made a statement concerning the matter under inquiry. At first he denied having had anything to do with any treatment of Marion Blythe at his office in Council Bluffs, or any connection with her death. Later he was confronted with the taxi driver who told that he was called to his office on April 23, 1946, and that while there he was directed by Anderson to take Marion Blythe to a certain address in Omaha; and was also confronted with Jesse Middleton who told of the coming of Marion Blythe to his home in Omaha and the visits of appellant and Dr. Campbell, and the death and disposal of the body by casting it into the Missouri River.
Thereupon appellant made a statement to the officials. This was taken down by a shorthand reporter and was almost entirely in the form of questions and answers. This statement was exhibit 6 and was introduced in evidence. Nowhere in this statement did appellant claim that what he did was necessary to save the life of Marion Blythe. On the contrary, he stated: “I tried to talk her out of the whole God damn mess. * * * That ruins me and all my prospects, just trying to help a girl in something.” His statement covers fifteen pages of the printed record.
The record shows that it was given freely and voluntarily and after the appellant had been advised as to his constitutional rights. In the statement appellant told of the visits of Marion Blythe to his Council Bluffs office, her payment to him of the $400, of sending her to the Middleton home, her treatment there, her death, and later the disposal of her body.
It is rather significant that appellant made no record of his treatment of Marion Blythe. He stated that he kept a record of all legitimate cases. Later, as a witness, he offered an explanation of what he meant by the term. His testimony on the trial varies in some important particulars from the statement given. As a witness he detailed the visits of Marion Blythe to his office, his treatment of her there; also, of sending her to Omaha, the treatment there, her death, the cause thereof, and the disposal of the body.
During the trial, Anderson stated that when Marion Blythe first came to his office she was then having a miscarriage and what he did was to give her treatment for such condition and that what he and Dr. Campbell did was necessary and proper to save her life. He testified that when Marion came to his office for treatment she told him that she was pregnant and that a “boy friend” had given her some tablets to induce or procure a miscarriage; that she had taken a quantity of such tablets and that she needed treatment. No other witness testified on Anderson’s behalf.
In rebuttal, the State offered two medical witnesses — both men of experience and unquestioned ability. Dr. J.B. Thornell, of Council Bluffs, a specialist in obstetrics and pediatrics for nineteen years, testified that in his opinion the tablets would not cause an abortion. Dr. Robert W. Collins, of Council Bluffs, a specialist on obstetrics and gynecology for ten years, testified that there is no drug which will produce an abortion. This witness, in connection with his medical practice, was an instructor in the department of medicine in the University of Nebraska.
Both Dr. Thornell and Dr. Collins gave testimony contradicting that of Anderson regarding the treatment and cause of death of Marion Blythe; also corroborating the testimony of Dr. McArdle that her death was caused by an abortion.
Anderson’s defense is based to a very large extent upon his own story. A jury could properly find and infer that his testimony when considered in the light of the admissions made by him on April 26, 1946 was not entitled to the credit or weight claimed for it. The unfortunate girl is dead. Appellant alone gives evidence as to what happened when she came to his office. The jury was not bound to accept his statement of what then took place as true. The entire picture from the time the deceased went to his office, what took place there, her death and the disposal of her body, the acts and conduct of appellant when interrogated, his statement and later testimony, are all proper matters for the jury to consider in determining the guilt or innocence of appellant and arriving at a verdict.
During the trial, Anderson gave testimony as to what he had done in carrying out and completing the miscarriage which he claimed was already taking place when Marion Blythe came to his office. He detailed the various steps and told the necessity therefor and the results to be expected. On rebuttal, Dr. Thornell and Dr. Collins had propounded to them hypothetical questions predicated upon the identical facts as testified to by appellant and they were asked whether the matters set forth by appellant could alone procure an abortion. It seems to us that the testimony of these two witnesses clearly tended to contradict the testimony of appellant.
We hold that the trial court properly admitted the testimony of Drs. Thornell and Collins in rebuttal. It tended to contradict the testimony of appellant and as such was admissible.
“You will observe that a definition of murder in the first degree is given above, while the defendant in this case is charged with the crime of murder in the second degree. Murder in the first degree has been defined to you only for the purpose of enabling you to distinguish the essential elements which constitute the two crimes.”
In said instructions the court expressly told the jury the things necessary to be shown by the State to establish the crime of second-degree murder. Two forms of verdict were submitted to the jury: that of second-degree murder and not guilty. The jury was likewise told that if the evidence showed beyond a reasonable doubt that appellant attempted to or did procure a miscarriage on Marion Blythe and that it was not necessary to do so to save her life and that if death resulted from such miscarriage, then such act causing the death of Marion Blythe was murder in the second degree. Thus it would appear that the court was careful to define murder in the two degrees in order that the jury would have in mind a clear distinction between the two crimes. We are unable to see wherein the giving of the instruction defining first-degree murder under the record could have been prejudicial to appellant.
We hold that the trial court did not err in permitting Dr. McArdle to express an opinion as to the cause of the death of Marion Blythe. He was speaking as an expert witness; he had been in the practice many years and no question could be raised as to his competency. He testified that during his experience he had handled numerous miscarriage cases. He was called by the coroner, performed an autopsy, described the condition of the body and the organs involved, and gave his opinion as to the cause of death. The specific objection was that his answer was a conclusion of the witness and that the witness was incompetent. There is no merit to this objection.
Mrs. Middleton was a witness for the State. She had testified before the grand jury and the minutes of her testimony were attached to the indictment. As a witness she gave certain testimony some of which did not harmonize with that given before the grand jury. The State propounded questions to her touching such discrepancies and in so doing called her attention to certain parts of her testimony given before such body. Appellant objected to this line of questions stating among various grounds that the State was attempting to impeach its own witness. In overruling the objection the court said: “I think it is abundantly shown that upon this point the witness is hostile, and it is for that reason that I overrule the objection.”
Without approving the comment of the trial court in the presence of the jury, an examination of the record convinces us that the court was right in the ruling. There can be but little doubt that Mrs. Middleton was a reluctant witness and gave evasive and unwilling answers to some of the questions propounded touching what she had testified to before the grand jury. The record shows that she could hardly be classed as a disinterested witness. She had a working agreement with appellant of many months’ duration to care for patients sent her by appellant and Dr. Campbell. Marion Blythe died in her home and under circumstances from which it could be inferred that matters connected with an illegal operation had taken place therein. No doubt the publicity and notoriety given the incident and where it happened and the parties connected therewith were matters given some consideration by the witness.
Requested instruction No. 2 is somewhat similar to No. 1 and states that if appellant made a mistake this would not constitute the crime and that if upon examination of Marion Blythe it was found a miscarriage was only threatened and not inevitable that a mere mistake by appellant in diagnosing the miscarriage as inevitable, such mistaken judgment in diagnosis and in administering the treatment that he gave would not constitute the crime as charged and that the appellant should be found not guilty.
We think that the matter urged in requested instruction No. 2 is covered by instruction No. 5 given by the court. Therein the jury was told that if in the exercise of proper professional judgment it appeared necessary to cause a miscarriage on a pregnant woman to save her life then such act is not in law considered an unlawful act, and if death results from the operation or the means employed to cause or procure such miscarriage, the physician performing the operation or employing the means to cause or procure the miscarriage is not deemed guilty of any offense against the law. Immediately following this the jury was told that if the evidence showed beyond a reasonable doubt that appellant did bring about a miscarriage substantially as charged in the indictment and that such miscarriage was not necessary to save the life of Marion Blythe and that she died as a result of such miscarriage, the act of the defendant would constitute murder in the second degree.
The appellant urges that the court erred in allowing over appellant’s objection the testimony of Mrs. William Blythe and Evelyn Blythe, mother and sister respectively of Marion Blythe, touching upon the physical condition of Marion at the time mentioned in the indictment. The State offered such testimony to support its claim that when Marion went to appellant’s office for treatment in April 1946 she was in good health. Appellant discusses the evidence but cites no authorities to sustain his claim. He simply states that there was no competent evidence of any probative value as to the condition of Marion when she went to appellant’s office. The record shows that the observations were made the very day Marion went to appellant’s office. This evidence would be proper in that the State was required to show that it was not necessary to cause the miscarriage to save the life of Marion Blythe. We think that the witnesses were competent to give the testimony offered. They simply told what they had observed. Being in regular contact with Marion they were competent to give an opinion based upon observation.
Appellant urges as error the overruling of an objection to a question propounded by the State to Dr. Thornell and one of like import to Dr. Collins. The question propounded to each of such medical witnesses was: “Doctor, from your experience as a physician and surgeon, specializing in obstetrics and pediatrics, what is the standard and accepted and recommended treatment in a case of a threatened miscarriage?”
The objection urged was that the same was incompetent as well as not proper rebuttal. Appellant cites no authority to support such claim. Appellant as a witness testified as to what was the proper practice to be followed in case of a threatened miscarriage and claimed that in treating Marion Blythe he followed such practice. The questions propounded to Drs. Thornell and Collins were offered to show the standard and accepted treatment in such cases and were offered to rebut appellant’s testimony as above set out. It was properly received in rebuttal as it threw light on the issue raised and was competent for that purpose.
We have gone over the record with care and considered all error properly raised. We hold that there was a jury question and that there was no prejudicial error in the admission of evidence or in the instructions, both refused and given, and the case is affirmed. — Affirmed.
All JUSTICES concur.
Marian had come to the United States from England with her family.
- State v. Anderson, Supreme Court of Iowa 239 Iowa 1118 (1948)
- 1940 United States Federal Census