The judgment is reversed on two main grounds.
Referring to the challenged instruction it is said: the instruction "fails to properly inform the jury as to the proper purpose for which the evidence may be considered," and that "under the instruction, the jury may have found that this evidence raised a probability that the defendant performed the abortion when the evidence should have been considered only as tending to show that the defendant had an opportunity to perform it."
To my mind the instruction is not open to this criticism. The court was dealing solely with "the existence of a design or plan in the mind of Muriel Samski, at the time such statements were made. . . ." The court was not referring to the defendant. The state sought to prove a mutual arrangement between Miss Samski and the defendant for the purpose set forth in the information, and the court limited this testimony to her part of the joint purpose. If the abortion performed *Page 132 was not the one agreed upon by the parties, the jury was not to consider her statements. This is the purport of the charge.
It is futile to say no conspiracy to commit the crime was shown. This abortion could not have been committed without an agreement between the defendant and the girl that the criminal act should be committed — each assisting. The evidence shows it was planned between them.
The exception does not in any way incorporate the thought or idea suggested in the opinion. It says: "The court erred in so instructing for the reasons that statements made by the said Muriel Samski were not binding upon the defendant; that there was no conspiracy shown, that the same were purely hearsay, and not a part of the res gestæ, and that the court failed to instruct that the jury must first find that there was a conspiracy between the said Muriel Samski and the defendant; and that any statements so made by the defendant must have been made in good faith without any ulterior motive and were a part of the res gestæ act connected with their carrying out a conspiracy previously shown to have existed, and the court should further have instructed that any testimony relating to statements made by the said Muriel Samski must not have been a mere recital of things done by her, the defendant, or a recital of her acts or intentions."
The defendant did not request the court to instruct in accordance with the language of the exception or the ideas therein expressed. Nor did he except on the ground that the instruction failed to "properly inform the jury as to the proper purpose for which the evidence may be considered."
It is difficult to see how the jury could take this charge and infer therefrom "a probability that the defendant performed the operation." The inference they would draw from it was that there was a definite purpose to have an abortion performed, but unless the abortion actually performed was the one so planned, the evidence was not to be considered. It was directed to the actual result and was not to be considered unless they found that the actual result was the one to which this referred. The excerpts from the Wisconsin, Washington, California, and Florida decisions show the pertinency of the statements.
The second proposition deals with the testimony of Mrs. Miller. Clearly Miss Samski was a co-conspirator. Clearly the statement *Page 133 attributed to her was made not only during the life of the conspiracy, but also in furtherance of it. After the conspiracy is shown statements made by a co-conspirator in furtherance of the conspiracy are admissible. These statements need not be testified to by the conspirator. It is reasonable to argue that these statements could not be used in order to prove aconspiracy; but where the conspiracy is proved by independent testimony, as in this case, then the statements made by a conspirator, no matter to whom they are made, if made during the life of the conspiracy and in furtherance thereof, or as part of res gestæ, are admissible. Now this conspirator was dead and the testimony of Mrs. Miller is as to statements made by the conspirator.
There was no specific objection to this testimony quoted and found on page 258 of Vol. I. of the transcript. The witness was testifying as to her acquaintance with the deceased. The matter deemed objectionable begins on page 256 where she testified the deceased said she was going to see a doctor. A general objection that it was immaterial was overruled. There was some more testimony as to what the girl said when she returned from Bottineau. The objection that this was "wholly immaterial, not binding on the defendant, hearsay" was overruled. After some more testimony there is the following:
"Mr. Cuthbert: I would like a certain amount of objection so that if they are overruled, they are protected anyway.
"The Court: This particular witness, you may have an objection, but on another witness, I would like you to make the objection you care to."
After this generous but somewhat indefinite treatment by Judge Lowe, counsel said that he wanted this objection, "Just for this witness to this line of testimony." I assume this means the line of testimony already entered.
Thereafter the witness stated what the deceased said about going to see the defendant, when this was, when she left, who went with her, when they came back, and a later talk about going back to Bisbee. It was at this time the witness testified:
"A. She said Phillips told her to come back on the following Monday. *Page 134
"Q. Yes? Anything else said? A. That he would perform the operation."
This was followed immediately with testimony showing the girl left on the following Monday and that she saw her the next Saturday. She testified as to her apparent state of health when she went away, how long it was before she came back, etc. This covered several pages and no objection whatever was interposed other than what has been quoted. As a matter of fact, this subsequent testimony takes four pages of the transcript. In a great portion of this testimony there was many a question asked and many an answer given that no reasonable person would claim was objectionable.
It seems to me that we are reverting to the old system of searching for error sufficient to reverse, when the evidence shows clearly the defendant is guilty. I do not see how any reasonable man can doubt the latter statement.