State v. Martin, 178 Wash. 290, 34 P.2d 914 (1934).

      [No. 25153. Department One. July 23, 1934.]
      THE STATE OF WASHINGTON, Respondent, v. E. T.
                MARTIN, Appellant./1

[1] ABORTION (2-1) - HOMICIDE (7-1) - MANSLAUGHTER - HOMICIDE IN
COMMISSION OF UNLAWFUL ACT - BURDEN OF PROOF. In a
prosecution of a physician under Rem. Rev. Stat., SSSS 2397
and 2448, for abortion and manslaughter in attempting to
produce a miscarriage, the burden upon the state to prove that
the operation was not necessary to preserve life is sustained
where there was ample competent evidence that the accused
operated on a healthy woman, at her request, to procure an
abortion, and that she died in consequence thereof.

[2] ABORTION (2-2) - HOMICIDE (7-1) - MANSLAUGHTER - HOMICIDE IN
COMMISSION OF UNLAWFUL ACT - EVIDENCE - SUFFICIENCY. In a
prosecution for manslaughter in attempting to procure an
abortion, under Rem. Rev. Stat., SS 2397, it is not necessary
for the state to show that the woman operated upon was
actually pregnant; it being sufficient to show that the
accused believed the deceased to be in that condition and
used an instrument with unlawful intent to produce a
miscarriage.


1 Reported in 34 P.2d 914.

                     STATE v. MARTIN.               291
 July 1934               Opinion Per MILLARD, J.

Appeal from a judgment of the superior court for
King county, Jones, J., entered September 26, 1933,
upon a trial and conviction of manslaughter. Affirmed.

Geo. H. Crandall, for appellant.

Robert M. Burgunder and John F. Walthew, for
respondent.

MILLARD

MILLARD, J. By the first count of an information, a
physician and a nurse were charged with the crime of
manslaughter, in that defendants' use and employment
of instruments and other means, with intent
thereby to procure the miscarriage of a named woman,
the same not being necessary to preserve her life,
produced the death of the woman. The pertinent statute
reads as follows:

"Every person who shall provide, supply or administer
to a woman whether pregnant or not, or shall
prescribe for or advise or procure a woman to take
any medicine, drug or substance, or shall use or employ,
or cause to be used or employed, any instrument
or other means, with intent thereby to procure the
miscarriage of a woman, unless the same is necessary to
preserve her life, in case the death of the woman
is thereby produced, shall be guilty of manslaughter."
Rem. Rev. Stat., SS 2397.

By the second count of the information, the same
defendants were charged with the crime of abortion
(the same woman was the named victim in each count),
in violation of the statute which provides that

"Every person who, with intent thereby to produce
the miscarriage of a woman, unless the same is necessary
to preserve her life or that of the child whereof
she is pregnant, shall . . .

"Use, or cause to be used, any instrument or other
means;

"Shall be guilty of abortion." Rem. Rev. Stat.,
SS 2448.

 292    STATE v. MARTIN.
                    Opinion Per MILLARD, J.      178 Wash.

The trial resulted in acquittal of the nurse and
verdict of guilty as to the physician on both counts.
From the judgment and sentence pronounced in accordance
with the verdict, the physician prosecutes this
appeal.

[1] Citing State v. Powers, 155 Wash. 63, 283
Pac. 439, as sustaining authority, appellant insists that
the irrigating curettement, an operation performed
with a surgical instrument for the purpose of emptying
the uterus, was necessitated by the presence of infection;
and that the state did not sustain the burden
of proving that the operation performed by him was
not necessary to save the patient's life.

In State v. Powers, supra, we said that, according
to the medical testimony offered by the appellant, a
curettement is recognized as proper where there was
flowing, increased temperature and accelerated pulse,
for the reason that infection would be indicated. We
held that, under the statute (Rem. Rev. Stat., SS 2448),
it was necessary for the state to prove that the
curettement of the prosecuting witness in that case was not
necessary to preserve her life, and said:

"If the appellant, in performing the operation, did
something which was recognized and approved by
those reasonably skilled in his profession practicing in
the same community with him and the same line of
practice, then it cannot be said that the operation was
not necessary to preserve the life of the patient. That
circumstantial evidence is competent to prove the absence
of a necessity for an operation in order to preserve
a woman's life, is amply supported by authority."

The burden was imposed upon, and sustained by,
the state to prove that the curettement was not necessary
to preserve the life of the patient. If, in the case
at bar, the evidence adduced by the state is true (the
jury had a right to believe it, and their verdict reflects

                     STATE v. MARTIN.               293
 July 1934               Opinion Per MILLARD, J.

acceptance thereof as true and the rejection of the
testimony of appellant and his co-defendant as untrue),
that evidence is sufficient to show non-necessity
of the curettement to save the woman's life. The facts
are summarized as follows:

In February, 1933, an unmarried woman, twenty-two
years old and apparently in good health, discovered
that she was pregnant. She so informed her
lover, who obtained for her an emmenagogue in the
form of pills. These failed to renew the menstrual
flow. In March, 1933, her lover procured for her a
drug known as duray. Part of this was taken by the
woman in March, and the remainder of it about April
3rd or 4th. It, likewise, was of no aid in bringing on
the menstrual flow. During all of this time the woman
was employed as a clerk in a store. Members of her
family and a fellow employee, none of whom knew
that she was pregnant, and her lover, testified that her
physical condition, appearance and demeanor were
unchanged during the period of pregnancy. Between
April 7th and 10th, she had a slight attack of headache
and indigestion, but there is no other record of
indisposition.

On April 8th, on advice of a physician, she went to
the nursing home of appellant's co-defendant. The
latter, on inquiry of the woman and her lover, gave the
names of appellant and another physician who would
take care of the case. On Tuesday, April 11th, the
woman's lover called at the office of appellant and
informed him as to the woman's condition. The appellant
advised his caller to bring the woman to appellant's
office the next morning, April 12th, for examination.
This was done. The woman was in appellant's
private office approximately thirty minutes. Only the
appellant could testify concerning what there occurred

 294    STATE v. MARTIN.
                    Opinion Per MILLARD, J.      178 Wash.

and what was said; the victim's lips were
sealed by death.

After the woman's departure from his private office,
appellant informed the woman's lover that the entire
cost until Saturday night, including the nursing home
charges and the appellant's fee, would be seventy-five
dollars, and directed him to take the woman to the
nursing home of appellant's co-defendant, which was
done that afternoon. Two days later, Friday, April
14th, the appellant performed the curettement operation
and removed the fetus of a child. Appellant's
co-defendant testified that the nature of the operation
was not disclosed to her; that

"I understood he was going to use a hot antiseptic
wash. I didn't understand he was going to remove
the fetus of a child. I would not have permitted Dr.
Martin to remove the fetus of a child without calling
in another physician to certify or find the necessity
of it. Dr. Martin did not tell me what he was doing.
. . . If I knew that the girl had been pregnant and
there was a fetus in the uterus, and there was to have
been a curettement, I would have insisted on calling
another doctor before I allowed a curettement to be
done in my place."

Following the operation, the patient's condition
became critical. Appellant no longer attended the
woman, because, so he testified, of his physical
condition. He caused Dr. Templeton to be called to care for
the patient. The following Wednesday, April 19,
1933, exactly one week subsequent to the time she
called on appellant for advice, the patient was removed,
on advice of Dr. Templeton, from the nursing
home to the Virginia Mason hospital, where she died
the next morning.

There was testimony that appellant and his co-defendant
advised the deceased's lover to testify, in
the event of an inquest and prosecution, that the

                     STATE v. MARTIN.               295
 July 1934               Opinion Per MILLARD, J.

deceased had excessive cramps, had sustained a fall and
had excessive flowing. The testimony of the deceased's
relatives and lover was that, the day before and the
day the deceased called at appellant's office, there was
nothing indicative of a rise in temperature or flushing;
that they never knew that the deceased had ever sustained
a fall. The woman's lover met no objection on
the part of appellant when he approached the appellant
in the matter of having the illegal operation performed
on his sweetheart, who was in good health and
three months advanced in pregnancy.

Appellant's narration, corroborated in part by his
co-defendant, was that, when the woman called at his
office, she had accelerated pulse, a rise in temperature
and was flowing. He made a thorough examination of
the woman after she gave to him a history of the case.
She informed him she had missed three menstrual
periods, had taken emmenagogues and used appliances
to renew the menstrual flow, and that she sustained
a fall and had a chronic condition of the bowels from
which she had suffered all of her life. He advised
hospitalization. She demurred, fearful of the publicity
incident to being in a hospital. Thereupon, arrangements
were effected for treatment in the private
sanitarium of his co-defendant. He further testified
that she flowed continuously from the time (Wednesday,
April 12th) she called at his office until Friday,
April 14th, when her uterus was evacuated; that continued
rise in temperature, accelerated pulse and flowing
indicated a condition necessitating the operation
performed by him. His testimony as to accelerated
pulse, rise in temperature and flowing while in the
private sanitarium was corroborated by his co-defendant.

True, the deceased tried to commit an abortion. It
likewise clearly appears that her attempts were

 296    STATE v. MARTIN.
                    Opinion Per MILLARD, J.      178 Wash.
successful, and that she started out to find, and did
find, a physician who would perform the operation.
There is ample competent evidence that appellant
operated on a healthy woman, at her request, to procure
an abortion, and that she died in consequence
thereof. The inference is irresistible, and we are
convinced, as was the jury, that the operation was not
necessary to preserve the life of the mother.

[2] Appellant assigns as error the giving of the
italicized portion of the following instruction:

*"You are instructed that it is not necessary for the
state to prove to you that . . . [name of woman]
actually was pregnant.* It is sufficient if you are
convinced by the evidence in this case beyond a
reasonable doubt that the defendants, at the time and place
alleged in the information, used or caused to be used
upon the said . . . [name of woman] any instruments
or other means with intent to produce the miscarriage
of the said . . . [name of woman], and
that the same was not then and there necessary to preserve
the life of . . . [name of woman]."

The assignment is without merit. The statute (Rem.
Rev. Stat., SS 2397 ) on which the charge of
manslaughter is bottomed does not require that the crime shall
be committed upon a "pregnant" woman. Under the
statute defining the crime, pregnancy is not a material
fact to be proved or found by the jury unless the defendant
is charged with the death of a quick child.
The crime with which appellant was charged could
have been committed even though his patient were not
pregnant.

"It is enough in such a case that the defendant,
believing her to be in such condition, used instruments
with the unlawful intent to produce a miscarriage, and
that she died as a result of the injuries thus inflicted."
State v. Snyder, 188 Iowa 1150, 177 N. W. 77, 10 A.
L. R. 309.

                     STATE v. MARTIN.               297
 July 1934               Opinion Per MILLARD, J.

To the same effect is State v. Bickel, 177 S. W. (Mo.)
310. It was there held, on a trial for homicide charged
with having resulted from an abortion, that it is immaterial
whether the woman was actually pregnant
or not, under a statute which provides that

". . . any person who, with intent to produce
or promote a miscarriage or abortion, advises, gives,
sells or administers to a woman (whether actually
pregnant or not), or who, with such intent, procures
or causes her to take, any drug, medicine, or article or
uses upon her, or advises to or for her the use of, any
instrument, or other method or device to produce a
miscarriage or abortion (unless the same is necessary
to preserve her life or that of an unborn child, or if
such person is not a duly licensed physician, unless the
said act has been advised by a duly licensed physician
to be necessary for such a purpose), shall, in event of
the death of said woman, or any quick child, whereof
she may be pregnant, being thereby occasioned, upon
conviction be adjudged guilty of manslaughter in the
second degree, and punished accordingly."

Under our statute, Rem. Rev. Stat., SS 2397, one who,
believing her to be pregnant, uses instruments or other
means upon a woman for the purpose of producing an
abortion, or induces the woman to use an instrument
or other means for such purpose, is guilty of manslaughter
if she die as the result of such operation,
even though the woman is not, in fact, pregnant.

Two other assignments respecting certain questions
asked by the prosecutor, to which objections were sustained
by the court, are without substantial merit.

Our examination of the record failing to disclose
reversible error, the judgment is affirmed.

BEALS, C. J., MAIN, MITCHELL, and STEINERT, JJ.,
concur.