I dissent as to the result reached and from the views expressed in part IV of the prevailing opinion by Mr. Justice *Page 194 EPHRAIM HANSON, wherein it is held that evidence of another attempted abortion is admissible only in rebuttal. I am in accord with the view that such evidence is relevant to the issue of intent, but cannot concur in the holding that its admissibility is limited to rebuttal, and then only when the act charged is admitted by the defendant and justification for the act is claimed.
As a general rule, proof of the commission by defendant of another offense wholly unconnected with that for which he is on trial must be excluded. This rule, however, is subject to the exception, among others, that, whenever motive, knowledge, or intent constitutes an ingredient of the offense charged, evidence is admissible of acts or conduct of the accused which tends to establish such motive, intent, or knowledge, notwithstanding the fact it may disclose another crime. The author of Underhill on Crim. Ev. (2d Ed.) p. 602, speaking with reference to the charge of abortion, says:
"An abortionary intent must be proved. * * * Evidence that the accused prior, or subsequently, to the act alleged, had attempted to procure an abortion on the same woman, using the same or different means, or that on other occasions he had operated on other women, or held himself out as being able and willing to commit an abortion, is always admissible to show his purpose and intention in connection with the act charged."
Mr. Wigmore in 1 Wigmore on Ev. (2d Ed.) at page 667, speaking of abortion, says:
"The intent principle (ante, Sec. 302) is available; other occasions of using such instruments or drugs, whether prior or subsequent, tend to negative an innocent intent."
In State v. Rowley, 197 Iowa 977, 195 N.W. 881, 882, the court says:
"The fact that appellant may have performed other similar acts closely connected in time with the act in question, and that such acts were performed with the intent to produce miscarriage, and that the same was not necessary to save life, would have a legitimate bearing upon the question of the intent of appellant in the instant case, if *Page 195 the jury believed the evidence of the state to the effect that the act was in fact performed."
The author of 2 Jones' Comm. on Ev. (2d Ed.) p. 1161, in speaking of the relevancy of other acts for the purpose of proving intent, gives reasons therefor as follows:
"The intention with which a particular act is done often constitutes the burden of the inquiry, and to prove the intent it becomes necessary, in many instances, to extend the examination beyond the particular transaction concerning which the accused is upon trial. For the purpose, therefore, of proving intent, not of proving the act itself, it is often permissible to show other criminal transactions of the same sort springing from like mental condition. Bishop, in his work on Criminal Procedure, after giving various illustrations as to the proper application of this rule in criminal practice, sums up his conclusion in the following words:
"`It is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible; and it is also admissible, if it really tends thus, as in the facts of most cases it does not, to prove the act itself.'"
Notwithstanding the general rule that this kind of evidence is relevant to the issue of intent, the cases are not in accord as to its application, as already shown by Mr. Justice EPHRAIM HANSON. One line of cases holds that, where the element of intent is an essential ingredient of the crime charged, and must be proved by the state, evidence of other abortions, or attempted abortions, is admissible, because relevant to that issue, as part of the state's case in chief. State v. McCurtain, 52 Utah 63,172 P. 481, 482; Clark v. People, 224 Ill. 554, 79 N.E. 941;People v. Hagenow, 236 Ill. 514, 86 N.E. 370; People v.Schultz-Knighton, 270 Ill. 238, 115 N.E. 140; People v.Hobbs, 297 Ill. 399, 130 N.E. 779; State v. Newell,134 Minn. 384, 159 N.W. 829; State v. Rowley, 197 Iowa 977,195 N.W. 881; State v. Brown, 3 Boyce (Del.) 499, 85 A. 797, 800;State v. Doty, 167 Minn. 164, *Page 196 208 N.W. 760, 761; Rex v. Graham, 9 B.R.C. 129 (1915) Vict. L.R. 402; Rex v. Bond, 9 B.R.C. 92 (1906) 2 K.B. 389. Other cases hold that evidence of other abortions, or attempted abortions, becomes relevant, competent, and material only when the defendant has testified or otherwise indicated that he admits the act charged, but denies criminal intent by assigning some other excuse or justification for doing the act. People v.Seaman, 107 Mich. 348, 65 N.W. 203, 61 Am. St. Rep. 326;People v. Lonsdale, 122 Mich. 388, 81 N.W. 277; People v.Hodge, 141 Mich. 312, 104 N.W. 599, 113 Am. St. Rep. 525;People v. Hickok, 56 Cal. App. 13, 204 P. 555; Clark v.Commonwealth, 111 Ky. 443, 63 S.W. 740.
I am not inclined to accept as law the rule announced in the prevailing opinion, for the reason that I think it basically unsound and not supported by the weight of authority, and for the further and more important reason that this court is committed to the contrary doctrine by its decision in State v. McCurtain, supra.
The defendant Cragun was charged with using an instrument on the womb and body of the prosecutrix with intent to procure a miscarriage; the procuring of an abortion being then and there unnecessary for preservation of the life of such woman. By the information and the statute, the intent with which the instrument was used, that is, to procure a miscarriage not necessary for the preservation of life, is an essential ingredient of the charge. On plea of not guilty, each of the essential ingredients was put in issue and the burden cast on the state to prove each element of the charged offense. The gravamen of the offense is the criminal intent with which the instrument was used. It was not sufficient to prove merely the use of the instrument, because it may have been used for a proper or lawful purpose. If the act be established and the intent to bring about a miscarriage be clearly shown, yet the state must prove that the procuring of the miscarriage was not necessary to save the life of the pregnant woman. Neither of *Page 197 these elements can be ignored by the state nor proof thereof delayed until a defense is interposed by the defendant. True, there was some testimony elicited by the state, without evidence of another attempted abortion, from which the jury might have found criminal intent, but surely, where the burden is on the state to make its case beyond a reasonable doubt, it is not consistent to say it must rest its case on a part only of the relevant evidence available to it.
This court is committed to the doctrine that in an abortion prosecution the element of criminal intent is an essential ingredient of the offense charged, and that the burden is cast on the state of proving such element by adequate and substantial evidence in its case in chief. In State v. Wells, 35 Utah 400,100 P. 681, 683, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631, defendant was charged with the crime of abortion. He contended on appeal that the evidence was insufficient to show it was not necessary to procure the miscarriage in order to preserve life. The question was whether this element was an essential ingredient of the crime charged which the state must prove in its case in chief. The court, in passing on that question, said:
"Under such a statute as this the athorities generally hold, and we think correctly, that it is essential for the state to allege and prove that the production of the miscarriage was not necessary to save the woman's life, and that the burden of proving such fact is upon the state. * * * In all trials for crime the prosecution must prove to the satisfaction of the jury that a crime has been committed before it proceeds to inquire as to whom is the criminal. What is the corpus delicti of the crime here charged? The state sufficiently proved that the woman was pregnant; that the defendant performed an operation on her, and that she, in consequence of such operation, had a miscarriage. But the proof of such facts does not establish the crime of abortion as defined by the statute. Under such a statute it was also essential to prove that the miscarriage was not necessary to preserve the life of the woman."
In criticizing cases holding to the contrary, the court said:
"In so doing we think that the court, notwithstanding its expressions in the opinion, necessarily held with the New York court (People v. *Page 198 McGonegal, supra) that the negative in the statute is matter of defense, and that the affirmative must be established by the accused, a holding which we think is against the great weight of authority under statutes such as we have, making the negative an essential element of the offense."
This is the general rule as stated in 1 R.C.L. p. 73:
"When the statute punished the administration of drugs or use of an instrument with the intent to produce an abortion, the criminal intent with which a substance is administered, or an instrument is used, is the important consideration in determining the guilt or innocence of the accused."
The necessary ingredients of the offense charged must be proved by the state in its case in chief, or a judgment of conviction cannot be affirmed. State v. Wells, supra.
Where the defendant produces evidence which tends to show an admission that he did the act, but that it was done with innocent intent or in pursuance of a lawful purpose, no new issues are brought into the case. The most that is done is to set at rest any serious question as to the commission of the act, that is, the use of the instrument on the body of the woman, and leaves the issue of intent and purpose to save life as the important issue to be determined by the jury. Notwithstanding defendant's testimony or admission, it is still for the jury to find from all the facts and circumstances in evidence whether each of the essential elements has been proved beyond a reasonable doubt.
The state ought not to be restricted in its proof by a rule which says that, if there is any evidence already introduced which tends to prove intent, then no other relevant evidence on the same issue may be produced until the defendant introduces evidence tending to dispute part of the state's charge. Mr. Wigmore has indicated how the matter should be handled before the jury in 1 Wigmore on Ev. (2d Ed.) p. 615:
"It will be seen that the peculiar feature of this process of proof is that the act itself is assummed to be done — either because (as usually) it is conceded, or because the jury are instructed not to consider *Page 199 the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent."
The cases already cited support the view that, where the act itself is not admitted, the jury should be carefully instructed that evidence of other abortions, or attempted abortions, is limited to the question of intent, and is not to be considered in determining whether or not the defendant committed the act charged. State v. Bowen, supra. The following is pertinent from State v. Doty, supra:
"There was evidence of two other abortions performed about the same time. Such evidence is competent in this class of cases for the purpose of showing a willingness and readiness, or a guilty or criminal intent. 1 C.J. 329; 1 Wig. Ev. (2d Ed.) §§ 302, 359;State v. Newell, 159 N.W. 829, 134 Minn. 384, and cases cited. Such evidence is to be restricted to the limited purpose for which it is received. It is to be distinguished from evidence objectionable as proving merely other crimes. The danger of it is that a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes. The court carefully cautioned the jury as to purpose of the testimony and how it should be considered."
Here the jury was properly instructed as to the limited purpose for which the evidence was admitted.
Coming now to the case of State v. McCurtain, supra: This case is referred to in the prevailing opinion, but it is there said that it is not in point. I am inclined to believe it is of controlling importance in reaching a decision in the instant case. There the state in its case in chief introduced evidence of an attempted abortion on another woman. It was admitted by the trial court as relevant to the issues made by the plea of not guilty. After the state rested, the defendant took the stand and admitted operating on the prosecutrix, but denied criminal intent by asserting the operation was performed to save life. This court, in holding that no error had been committed in admitting such evidence, said:
"The question of intent was therefore the most prominent feature of the case. It has frequently been held in prosecutions of this character that for the purpose of proving that the operation was in fact *Page 200 criminal, and as showing the intent of the accused, the state may show that other similar operations were performed upon other pregnant women. Among the numerous cases in which the courts have so held we refer to the following: [Citing cases.]"
The fact that the evidence was admitted in the state's case and not in rebuttal is not clearly disclosed in the opinion of the court, but is shown by reference to the abstract in the case. Abstracts and Briefs, No. 3157. No language is found in that opinion which supports, or tends to support, the view that the evidence objected to was not admissible except in rebuttal. True, the court said, "The question of intent was therefore the most prominent feature of the case." It was made "most prominent" because the defendant by his testimony admitted the act, but denied criminal intent. He had, however, by his plea of not guilty denied all the elements which had been charged. By his testimony he merely shifted emphasis from the act itself to the intent with which it was committed. The McCurtain Case is in all respects in point with the case before us, with the exception that there the defendant took the witness stand after the state rested, while here the defendant did not testify or introduce any evidence. I cannot see that such fact should control the question of whether this class of evidence is relevant to an issue in the case. The utmost confusion would result if it be held that, notwithstanding this class of evidence is relevant to a material issue which must be proved by the state, yet it may become irrelevant and incompetent unless the defendant interposes by evidence a certain defense. The prevailing opinion seeks to avoid such confusion by adopting the rule that such evidence is not relevant to the issue of intent unless and until the defendant makes it so by an admission of the act and the offering of some excuse or justification therefor.
The case of State v. Brown, supra, is cited by Mr. Justice EPHRAIM HANSON in support of the views there expressed. The court, however, in that case held that evidence of an abortion on another woman was admissible, but restricted *Page 201 its application by the jury to the question of intent, as indicated by the following quotation:
"In the present case the defendant is charged with giving medicine and using an instrument with the intent to procure a miscarriage. The indictment, as well as the statute upon which it is based, make the intent with which the medicine is administered and the instrument is used, an essential part or ingredient of the charge, and it is incumbent upon the state to prove such specific intent before a conviction can be secured. The very gravamen of the offense charged being the intent with which the defendant committed the acts alleged, it is not sufficient to prove the giving of the medicine because it may be given for a proper purpose. It is not enough to prove the use of the instrument merely because such an instrument might be employed for a legitimate purpose. The specific intent or purpose to produce a miscarriage must be proved before the guilt of the accused is established, and the performance of similar operations on the same or other women about the same time, we think are admissible. Such operations, however, are not admissible to prove that the defendant committed the acts charged, viz., gave the medicine and used the instrument mentioned in the indictment, but are only to be considered by the jury in determining the intent with which the acts charged were done, when the jury are satisfied by other testimony that the medicine was given, or the instrument was used by the defendant in the manner charged in the indictment.
"From the cases cited such appears to have been the position taken by the courts of many states, and is recognized generally by the text writers. Indeed, abortion, or the attempt to procure miscarriage, are offenses in the trial of which evidence of similar acts has been generally admitted. The rule permitting the introduction of such evidence is applicable to such cases because the law makes the intent with which the alleged act is done, or attempted, an essential ingredient of the charge, and places the burden upon the prosecution to prove the specific intent. [Citing cases.]"
The quotation from Clark v. Commonwealth, 111 Ky. 443,63 S.W. 740, 745, shows on its face it is not an authority here, since the Kentucky court contrary to the decision of this court in State v. Wells, supra, had held it not incumbent on the state to prove want of necessity to save life. It was there said:
"And it has been held in some instances, in prosecutions for criminal abortions, that it is incumbent upon the commonwealth to show as a *Page 202 part of its case that the abortion was not necessary in order to save the life of the mother. It seems that this court has not recognized the rule last mentioned."
The extreme to which this doctrine leads is shown when it is said that, if the state "be unable to prove the intent of the defendant without proving the commission, or attempted commission, by him on other women of separate and distinct offenses," then such evidence is admissible, but, if the intent can be proved without such evidence, it is not admissible. This would make the question of relevancy dependent on whether the state had other evidence which would tend to prove the issue. If the defendant pleads not guilty and does not take the stand in his own behalf, then such evidence is irrelevant to the issue of intent, but, if he takes the stand and admits the act, but denies criminal intent, then such evidence is relevant to the issue of intent. Surely the question of relevancy of evidence does not rest on such shifting grounds.
I concur with the views expressed by Mr. Justice EPHRAIM HANSON in parts I, II, and III of his opinion.
The court instructed the jury the statute required that the testimony of the woman upon whom the offense was committed shall be corroborated, and that a verdict of guilty could not be found unless such corroboration were present. There is in the record ample corroboration to satisfy the statutory requirements under either 105-32-18 or 105-32-14, R.S. 1933; hence I believe there was no prejudicial error in failing to further instruct with respect to corroboration. State v. Troiani, 129 Wash. 228,224 P. 388.
The judgment should be affirmed. *Page 203