People v. Josselyn

Crockett, J., delivered the opinion of the Court:

The defendant was indicted for and convicted of the crime of attempting to produce an abortion on the body of one Elizabeth Locke. The proof shows that he was at the time of the alleged offense a practicing physician; and in the same indictment two other persons, to" wit: Cordelia Rooms and ■Charles Clarke, are accused of having advised and encouraged the defendant to commit the offense. .The defendant ■was separately tried, and on the trial the witness, Elizabeth Locke, was permitted to testify, against the objection .of the defendant, to the facts and circumstances of her illicit connection with Clarke, which resulted in her pregnancy; and [397]the witness, Tuthill, was permitted to testify to certain conversations with Booms and Clarke, prior to the commission of the alleged offense by the defendant, to which rulings the defendant excepted, and which are relied upon as error on this appeal.

There was no error in permitting the witness, Elizabeth Locke, to testify concerning her criminal intimacy with Clarke. The fact that she was pregnant, was a material fact alleged in the indictment, and necessary to be proved on the trial. In establishing this fact, it was competent for the prosecution to prove all the circumstances tending to show her pregnancy; and her testimony, to the effect that she had been cohabiting with Clarke, certainly tended to prove that her pregnancy, if not a necessary, was certainly a natural result. The testimony was clearly competent.

The testimony of Tuthill, in respect to the conversation between himself and Clarke, does not appear -to have been objected to by the defendant; and even though it had been improperly admitted, it could not have prejudiced him, inasmuch as it related to immaterial matters. The conversation between the witness and Mrs. Booms, was to the effect that the latter suspected the girl, Elizabeth Locke, to be in the family way, and that she was about to take her to a physician to be examined. If this testimony was not admissible as a part of the res gestee, we, nevertheless, do not perceive how it could possibly have prejudiced the defendant. It is not denied, on the part of the defense, that the girl was taken by Mrs. Booms ‘to the office of the defendant to be examined by him, with a view to ascertain whether or not she was pregnant. The defendant, at the time of his arrest, stated to the policemen, McCormick and Stone, that the girl had been brought to him by Mrs. Booms, that he might examine her for that purpose; and he admitted he had made the examination, but denied that he had used any instrument for that purpose, or had sought to produce an abortion. These facts being duly established by other testimony, and not denied, as we understand it, no damage could possibly have resulted to the defendant from the declaration of Mrs.