I concur in the reversal of the judgment. I do so chiefly on the ground (1) of the inadmissibility of the evidence as to the commission by the accused of an offense similar to, but separate and distinct from, that charged in the information, evidence of an abortion claimed to have been committed or attempted to have been committed by him on another woman eleven months or more prior to the commission of the alleged offense; (2) error of the court in refusing to charge the jury that the woman on whom the alleged offense was committed was an accomplice and in charging that she was not an accomplice; and (3) error in charging the jury the purpose for which the provisions of R.S. 1933, 103-2-2 and 105-32-14 (presently to be noted), could be considered by the jury, and directing them such provisions could be considered only as bearing on or affecting her credibility.
In approaching a consideration of the first ground, I recognize a conflict in the cases on the subject. Some, I think the best-reasoned, cases, deny the admissibility of such evidence. Other courts, in some instances, admit it on the theory to show intent, motive, or guilty knowledge; still others to dispel an inference or presumption of mistake or accident in procuring the miscarriage or a necessity therefor to preserve the life of the woman. It is not my purpose to cite the cases with respect to the divers holdings and then "count noses." They are accessible as cited in texts and by annotations on the subject. I rather approach the question from a consideration of what I regard recognized and established principles of law on the subject, and an adherence to the texts and cases in harmony with such principles, rather than those unmindful of them, or reaching conclusions on mere expediency. *Page 168
The statute (R.S. 1933, 103-2-1), provides that:
"Ever person who provides, supplies or administers to any pregnant woman, or procures any such woman to take, any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life is punishable by imprisonment in the state prison not less than two nor more than ten years."
Thereunder, the state to convict is required to allege and prove, not only that the accused by means of drugs or medicine or instruments produced, or attempted to produce, a miscarriage, but also that such miscarriage was not necessary to preserve the life of the woman on whom the miscarriage was produced. That was decided in the case of State v. Wells, 35 Utah 400,100 P. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631. Such holding but followed the well-established rule that, when a negative is an essential element of an offense as defined by the statue, the state is required to allege and prove the negative. In other words, the statute does not declare every procurement of a miscarriage to be an offense, but is so only when done not to preserve the life of the woman on whom it is committed; and that the absence of such necessity is so far descriptive of the offense that it cannot be established without proof that the necessity did not exist. And so the authorities generally teach where, under a statute, as here, a negation is an essential element to constitute the offense. Hence proof that a physician in his professional treatment of a woman pregnant with child used means to destroy the fetus is not evidence that the miscarriage was not necessary to preserve the life of the woman. State v.Clements, 15 Or. 237, 14 P. 410. To that effect is the Wells Case. It, however, is no authority that for such purpose evidence of a separate and similar offense or offenses may be adduced.
It is a well-established rule, recognized substantially by all courts, that evidence of a separate and similar offense is not admissible against the accused on trial for another specific *Page 169 offense; that, when the accused is put on trial for one offense, he is to be convicted, if at all, by evidence which shows him guilty of that offense alone, and proof of guilt of one or more similar offenses unconnected with that for which he is on trial must be excluded, unless the proof comes within one or more of the exceptions to the general rule. Such exceptions, and as stated in the case of State v. Bowen, 43 Utah 111,134 P. 623, chiefly are: When it is material and proper to show motive or a scheme or plan for the commission of the alleged offense; where criminal intent or guilty knowledge of the wrongful or unlawful act or acts is material, especially as illustrated in cases of passing or uttering forged instruments, counterfeit coin or money, receiving stolen property, and in other cases where scienter or guilty knowledge is a material subject of inquiry; where the alleged offense and another claimed similar offense constitute parts of one transaction or parts of a general scheme or plan so related and connected that a complete account of the entire transaction of the one may not be given without also showing the other, or where proving the one involves proving the other; in adultery, prior acts or familiarity between the parties to show an adulterous disposition between them; in a charge of rape or attempted rape, previous attempts of the accused on the same female, but not on another female; in a charge of arson, that the accused made other attempts to set fire to the buildings in question, but not attempts to set fire to other buildings not connected with, nor a part of, the same transaction of the alleged offense. Jones on Evidence (2d Ed.) § 143; notes toPeople v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193.
Courts generally adhere to the rule that, to admit proof of the commission by the accused of an offense other than of the charged offense, the proof must come within one or more of the exceptions to the general rule excluding such evidence. What chiefly divides the courts on the subject is the question of whether the offered proof falls within or without such exceptions. The exceptions, like all exceptions *Page 170 to a general rule, in their application are restricted and limited and not to be enlarged. As stated by the Oregon court in the case of State v. Willson, 113 Or. 450, 230 P. 810, 39 A.L.R. 84 (rehearing denied Id., 113 Or. 450, 233 P. 259, 39 A.L.R. 84), the general rule that the commission of a separate crime cannot be proved in support of the one named in the indictment or information is still in existence, and that exceptions to the rule have not as yet superseded the time-honored precept of the law, and hence the exceptions are to be carefully limited and guarded and their number not increased.
To determine the admissibility of the complained of evidence as to the commission by the accused of an offense other than, and similar to, that charged in the information and as to whether such proof is within or without the exceptions to the general rule, necessitates a consideration of the evidence adduced in respect of the charged offense as well as that admitted as to such other offense.
The woman on whom the charged offense was committed in substance testified that she was a married woman, that she prior to the operation had given birth to two children, so far as made to appear, without any unusual conditions or complications, one child about two and a half years of age and the other about thirteen months, and that about the last of January, 1930, she discovered she was again pregnant. Until a month or more before then she had her usual monthly periods of menstruation, and that on discovering her pregnant condition she visited the accused, a regularly licensed physician, and told him that she was pregnant for about a month or a month and a half. He examined her and found that she was in such condition. She asked him if he could give her medicine to relieve her of her pregnancy. He told her medicine would not do any good, that he could perform an operation, and she would be all right, but that "it would come high." She told him she would think it over. She returned to his office a few days thereafter, February 4th, and told him she "had made up her mind" to have the *Page 171 operation performed, and "that she had the money to pay him." She testified that at that time "my health was all right; I was healthy in every way," except being pregnant. On that visit the accused placed her on the operating table and "performed the operation" by inserting an instrument in "my female organs, I felt a pain"; that he packed the uterus and told her to return the next day, when he would clean her out and she would be all right. She returned the next day; he asked her if she had started to menstruate; she told him she had not. He said she would in a few days. He again placed her on the table and used instruments on her as he had before, stating that he was cleaning her out so that there would not be any blood poisoning and told her not to worry. She paid him $15 on the first occasion and $10 on the second. She returned to his office on the 12th of February and told him she was not feeling very well, and that she had not started to menstruate. He then made a further examination of her and said there was a blood clot in the womb and cleaned it out. She returned the next day, when he told her he would put something in to hold the womb open.
Up to that time she alone had visted the accused. On the 15th she and her mother visited him at his office. He then made a further examination of the prosecutrix, told her her condition was caused by a tipping of the uterus, that she would be all right, and asked them to come back in a day or two. They did so, the prosecutrix then having chills and fever, and told the accused she was feeling worse. He told her she had just taken cold, and advised her to go home and drink hot lemonade. When she and her mother left the office of the accused, they went directly to the office of the family physician, who placed her on a table, and "with his fingers reached up in the region of my womb and proceeded to manipulate my body"; that she did not know whether he used any instrument or not, but shortly thereafter she started to flow, just blood, but no blood clots.
The mother testified she knew her daughter was pregnant *Page 172 and that the daughter on the 4th of February had been at the accused's office but had not consulted her about going to his office or to have an operation performed, that she told her an operation had been performed, and that the first time she accompanied her daughter to the accused's office was on the 15th, "after the operation had been performed." On that occasion she told the accused her daughter was not getting along all right, to which he replied, "I took out everything that should come out and used a serum so that there would be no danger of an infection," and told her to take her daughter home and give her hot lemonade; that the accused made an examination of the daughter, put her on the table, and used an instrument of some kind, and put something in to hold the uterus open and told them to come back on the 17th, when he would take out what he had put in; that they returned on that day, the accused again examined the daughter, but took nothing out, just "fussed around," and told them to come back in a day or two. When they left the office, the daughter having chills and fever, they went to the office of the family physician. The mother further testified that when on the 15th she went to the accused's office, she knew that he had performed an operation on her daughter; but there is nothing appearing in her testimony, or otherwise, that the mother in any way aided or consented to the operation or advised or encouraged it.
The family physician testified that he, at the request of the daughter, examined her, as he thought about February 10th, and from the history given him as to her menstrual periods and from his examination testified that in his opinion the daughter was pregnant on February 4th, and when he first examined her she was not "in such physical condition that it was necessary to remove the fetus to preserve her life." He further testified he again examined her on the 17th, and then found her in a septic condition and evidence of an infected uterus with pelvic peritonitis, an infection introduced into the uterus by forceful manipulation and an attempted removal of the fetal contents of the uterus; *Page 173 that the mouth of the womb was wide open and the mouth and neck greatly dilated and stretched with a powerful dilator; that he immediately sent her to the hospital, where she remained for a week or more, and when she left the hospital she was not pregnant. Testimony of another witness, a sister of the prosecutrix, was given as to an admission of the accused that he had operated on the prosecutrix.
The testimony of another woman, admitted over the objection of the accused, as to an operation performed on her eleven months or more prior to the commission of the charged offense, in substance was that "sometime in March, 1929," she, then unmarried, but later married the father of the child, believing she was pregnant, consulted the accused at his office, and on an examination by him he found such was the case. She testified that her health at that time was good, except that she was pregnant and had leucorrhoeal discharges, and that she wanted to be relieved from her pregnant condition; that the accused suggested an operation by the use of instruments, but she "would not let him do that," and so he prescribed medicine instead, which she took; that the child was born alive the following October, she thought it was an eight months' child, somewhere between seven and nine months, but in a normal condition, and at its birth was taken by a sister of her then husband, the father of the child; that between the time she first consulted the accused and until the birth of the child she visited him at his office on an average once a week and took treatments and medicine prescribed by him; that a day or two before the child was born she and her mother visited the accused at his office; that the mother remained in an outer room; that the accused took the witness in a private room, where he administered an anesthetic to her; that she did not know what he did, but when she came from under the influence of the anesthetic she fould herself on a couch with her feet propped up and that she felt "somewhat dizzy, silly, and was laughing"; that the accused put a pack on her, and then she and her mother drove home; shortly thereafter she *Page 174 felt water coming from her, which continued during the night, and the next day the child was born. She was asked if she desired to convey the idea that the accused during all the time from March until the birth of the child was attempting to commit an abortion, to which she answered, "He didn't tell me what he was doing, but that is the way it looked to me." The defendant rested his case without evidence when the state rested.
I have thus in some detail characterized the two offenses to show that they were entirely separate and distinct transactions and that the one in no particular was influenced by the other. It is urged that evidence of such claimed prior offense was admissible to show motive, or intent, or guilty knowledge of the accused as to the charged offense. Because in some cases evidence of a separate and similar offense is admissible to show motive or scienter, or intent, the fallacious conclusion is deduced that such evidence is admissible in all cases where a feloniousintent is an essential element of the charged offense. Of course, a felonious intent, a criminal or evil purpose, is an essential element in the commission of most felonies. But that does not mean that evidence of a prior, separate, and similar offense may be given in all cases to show with what intent the specific charged offense was committed. To contend that is to enlarge or increase or to disregard the exceptions to the general rule excluding such evidence. A felonious intent is an essential element of grand larceny. Yet one would hardly contend that, to show that the taking by the accused of the subject of the charged larceny was with a felonious intent, with a criminal or evil purpose, proof was admissible that he, at a different time and place and in a transaction unrelated to and not connected with the charged offense or with the circumstances thereof, committed a similar offense by taking, driving, or carrying away similar property of another, even though the accused claimed that the taking of the subject of the charged larceny was with an honest belief that he had a right to take it. So, too, a felonious intent *Page 175 is an essential element of murder. Again, it hardly would be contended that, to show the killing of the deceased by the accused was done maliciously or feloniously or without just cause or excuse, proof was admissible that at another time and place he killed and murdered C, where the two transactions were wholly separate and distinct, and the one in no way related to or connected with the other or the circumstances thereof and not parts of a general scheme or plan, even though the accused claimed he slew the deceased in necessary self-defense or that the killing was accidental. Numerous other similar instances might be noted. Thus to hold that evidence of other similar offenses may be adduced in all cases where a felonious intent is an essential element of the charged offense is a misconception of the exceptions to the general rule excluding such evidence.
In connection therewith there is another well-settled rule, and, as stated in 8 R.C.L. 206, that,
"where from the nature of the evidence under inquiry, proof of its commission as charged carries with it the evident implication of a criminal intent, evidence of a perpetration, or attempted perpetration of other like offense will not be admitted."
So, too, in 16 C.J. 589, the author says that:
"Where the question is whether a certain act was intentional or was done by accident or mistake, evidence to show that the accused intentionally committed similar acts is relevant to show the intent. On the other hand, where the nature of the offense is such that proof of its commission as charged carries with it a presumption of criminal intent, evidence of the perpetration or attempted perpetration of other like offenses is inadmissible."
Many cases are cited in support of such texts.
To that effect, too, is our statute, R.S. 1933, 103-1-19, that
"in every crime or public offense there must exist a union or joint operation of act and intent," and by the next section that "the intent or intention is manifested by the circumstancesconnected with the offense and the sound mind and discretion of the accused." (Italics added.) *Page 176
Here the act itself, thrusting an instrument by the accused into the uterus of a woman known by him to be pregnant and in good physical and healthy condition, and dilating the uterus with a powerful dilator to destroy and expel the fetus, so clearly proclaims the intent with which the act is done as to render proof of another similar offense inadmissible. People v.Lonsdale, 122 Mich. 388, 81 N.W. 277; People v. Corbin,56 N.Y. 363, 15 Am. Rep. 427. The proposition is self-evident. When thus upon the undisputed evidence it was shown that the woman on whom the operation was performed was a married woman in good physical condition and health, that she prior thereto had given birth to two children, that she again became pregnant, of which condition the accused had full knowledge, that she consulted and employed him to commit an abortion upon her, that for such purpose and to destroy the fetus he inserted an instrument in the uterus, dilated the mouth and neck of it, and packed it to keep it open to accelerate the expulsion of the fetus, to say that such acts and operation as so described by the evidence did not carry with them not only an implication but direct proof of criminal intent, it might as well be said in a case where shown an accused with a deadly weapon beat another to death, with no mitigating circumstances appearing, that such proof also did not carry with it an implication or proof of felonious intent. In either such case, the criminal intent is clearly manifested by proof of the circumstances connected with the offense, and hence evidence of a prior similar offense is inadmissible. From the evidence and the undisputed description of the operation as here shown, there is no basis for an inference or presumption that the miscarriage resulting from the operation was accidental, or through mistake, or was not done intentionally, or was produced to preserve the life of the woman on whom the operation was performed. To indulge any such inference or presumption from the undisputed evidence so adduced is to disregard the natural and legal effect of evidence. *Page 177
For less reason was the evidence admissible to show guilty knowledge. Guilty knowledge of what? Surely not to show that the accused had knowledge that the woman on whom the operation was performed was pregnant; nor to show he had knowledge that thrusting an instrument in the uterus and dilating and packing the mouth and neck of it would destroy and expel the fetus; nor to show he had knowledge of what he was doing and theconsequences thereof when he committed the charged offense; nor that he had knowledge that it was not necessary to produce the miscarriage to preserve the life of the woman. The case is not one where, as an exception to the general rule, evidence of another similar offense may be given to show scienter or guilty knowledge, as in cases of uttering spurious coin or money or receiving stolen property with knowledge that it was stolen or of other cases where scienter is a material element and a subject of inquiry. Says the author in 16 C.J. 589, that
"where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place, not too remote, accused committed or attempted to commit a crime similar to that charged. In other words, whereguilt cannot be predicated on the mere commission of an act, guilty knowledge may be proved by evidence of complicity in similar offenses; but where guilty knowledge is presumed fromthe character of the criminal act, evidence of other crimesshould not be received." (Italics added.)
Nor is there any basis for the admission of the complained of evidence to show motive. In discussing such exception to the general rule, the author again in 16 C.J. 590, says that
"evidence to show that motive prompting the commission of the crime is relevant and admissible notwithstanding it also shows the commission by accused of another crime of a similar or a dissimilar character. Thus it may be shown that the crime charged was committed for the purpose of concealing another crime, or to prevent accused of being convicted of another crime. However, for evidence of another crime to be admissible to prove motive, itis necessary that it fairly and directly tends to prove a motivegrowing out of the collateral crime, evidence of another crimewhich has no connection with that for which the accused is ontrial, and which therefore is not *Page 178 relevant to prove motive, cannot be introduced under the guiseof proving motive." (Italics added.)
Not anything is made to appear either directly or inferentially that the motive which prompted the commission of the alleged offense in any particular grew out of, or was in any way related to or connected with, the commission or attempted commission of the prior offense or that the one in any way was influenced by the other.
The further contention that the evidence was admissible to show that it was not necessary to produce the miscarriage to preserve the life of the woman is, on the undisputed evidence, likewise untenable. Whether the miscarriage was or was not necessary to preserve the life of the woman was dependent upon her state of health and physical condition. Logically, proof of the physical condition or state of health of one woman has no legal relevancy to show the condition of another. Had the state neither by direct nor circumstantial evidence shown the state of health or physical condition of the woman upon whom the operation was performed, and no evidence offered directly or inferentially to show that the miscarriage was not necessary to preserve her life, and no claim made by the accused and no evidence adduced by him tending to show such necessity, it could not well be contended that proof that the accused eleven months or more before produced a miscarriage of another woman not necessary to preserve her life had any legal relevancy to show absence of necessity in the charged offense. Though the state to convict had the burden of proof to show that the alleged miscarriage was not necessary to preserve the life of the woman, yet such fact, as all material facts, was required to be established by relevant testimony either direct or circumstantial as to the physical condition or state of health of the woman on whom the miscarriage was produced (State v. Shuford, 69 N.C. 486), or as might be gathered from the character and circumstances of the operation itself and the purpose for which as disclosed by the evidence the operation was performed. Because in some cases it may be *Page 179 difficult — here it was not — to prove absence of such necessity does not justify a resort to incompetent or irrelevant evidence. The absence of such necessity was here clearly established by the testimony of the woman on whom the operation was committed, by the testimony of the family physician, and by the character, circumstances, and purpose of the operation as disclosed by the evidence. As stated in State v. Shuford, supra, the absence of such necessity was dependent chiefly upon the health and physicial condition of the woman at the time, and that such fact was not affected by evidence of an operation performed on another woman at a different time and place.
No claim is made that the alleged offense and the prior similar offense constituted parts of one transaction, or parts of a general scheme or plan so related or connected that a complete account of the entire transaction of the one could not fairly be given without also proving the other, or that proving the one necessarily involved proving the other; and were such claim made, it on the evidence clearly would not be tenable.
Further, the chief reason why evidence of like offenses is inadmissible is that the introduction of it opens the door to collateral issues not embraced within the information and of which the accused is not apprised and hence unprepared to meet such issues; that to enter upon a trial of them may require as much or more time to try them as to try the charged offense for surely, if the state is permitted to give evidence with respect to the commission of other like offenses, the accused may also give evidence in refutation thereof. One of the requirements and functions of an information is to distinctly and in ordinary and concise language set forth the offense upon which the accused is to be put on trial, and in such manner as to enable a person of common understanding to know what is intended, so as to enable the accused to prepare himself to meet the charged offense, and to limit and restrict evidence with respect thereto. *Page 180
I come now to the case of State v. McCurtain, 52 Utah 63,172 P. 481. There on a charge of a criminal abortion it was held that testimony of a young woman that an abortion was committed on her by the accused at or about the time the operation was performed on the prosecutrix was properly admitted. Such evidence was held proper because of the claim there made by the accused that the miscarriage of the woman operated on in the charged offense was necessary to preserve her life. "Much evidence," said the court, "both for and against the defendants, upon that proposition was adduced," which, as stated, "constituted the chief issue of the case," and hence "the question of intent was therefore the most prominent feature of the case"; and that "it has frequently been held in prosecutions of this character that for the purpose of proving that the operation was in fact criminal, and as showing the intent of the accused, the state may show that other similar operations were performed upon other pregnant women."
In saying that the court followed and quoted from cases holding that a felonious intent is an essential ingredient of the crime charged and the act done is claimed to have beenaccidental of by mistake, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge and the intent or purpose with which the particular act was done and to rebut the presumption that it might otherwise obtain. But in most such cited cases, notablyState v. Brown, 3 Boyce (Del.) 499, 85 A. 797, 800, it, however, is stated that, where "from the nature of the offense under investigation proof of its commission as charged necessarily establishes the criminal intent, or the intent is a necessary conclusion from the act done, evidence of the perpetration, or attempted perpetration, of other like offenses, should not be admitted." 1 C.J. § 96, p. 329, is therealso cited and quoted, that "acts of defendant tending to show his knowledge of the woman's pregnancy and his intention to commit an abortion upon her may be proved whether they were prior or subsequent to the particular *Page 181 act charged in the indictment; hence evidence of other operations performed by defendant before or after the operation charged is admissible for the purpose of showing the intent with which the act charged was done." But immediately following such language, and in the same section, the author further says that "such evidence is competent only on the question of intent, and therefore is not admissible where the unlawful intent has been proved," etc.
Such is in accord with the recognized principle heretofore referred to that, where the nature of the offense is such that proof of its commission as charged carries with it an implication or presumption of criminal intent, evidence of the perpetraton or attempted perpetration of other like offenses is inadmissible. I recognize that some courts have not always been mindful of such distinction, said nothing about it, and seemingly without any reference thereto announced or stated that, where a felonious intent is an ingredient of the charged offense, evidence may be admitted of the commission by the accused of other similar offenses, which, so broadly stated, generally is conceded may not be done.
Giving the McCurtain Case on the subject full credit, I think the complained of evidence in the case in hand does not fall within it. Here there was no claim of any kind that the accused did not have full knowledge of the pregnant condition of the woman operated on by him, or that the miscarriage was produced accidentally or by mistake, or, unlike the McCurtain Case, any claim whatever that the miscarriage was necessary to preserve the life of the woman, nor on the undisputed evidence was any inference or presumption of any such claim permissible. On the contrary, and as heretofore indisputably shown, the accused did just what he intended to do, willfully, knowingly, and unlawfully to destroy the fetus of a pregnant woman because she did not wish the child and to prevent its birth, without any pretense or claim whatever to preserve the life of the woman.
Whatever justification there was for the admission of the *Page 182 evidence in the McCurtain Case because of the claim there made and evidence given in support thereof as to a necessity to produce the miscarriage to preserve the life of the woman, no such or any justification for the introduction of the evidence complained of was here shown, unless it be asserted that such kind of evidence is admissible in all cases where a felonious intent is an ingredient of the charged offense, which, I am sure, the learned justice who wrote the opinion in the McCurtain Case did not intend.
On the record I am convinced, and I think the record justifies the conclusion, that the complained of evidence, under the guise of showing intent or guilty knowledge or motive or the absence of necessity, was introduced to show the commission of another like offense to indicate a probability of the commission by the accused of the charged offense, or to show a disposition to commit it. As stated by Chief Justice Bigelow in Commonwealth v. Shepard, 1 Allen (Mass.) 575, evidence of other criminal acts "is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another." I thus think prejudicial error was committed in admitting evidence of such claimed prior offense.
Now as to the second proposition: The accused requested the court to charge the jury that the woman on whom the operation was committed was an accomplice, and that as provided by Comp. Laws Utah 1917, § 8992, now R.S. 1933, 105-32-18, no conviction could be had on her testimony, unless she was corroborated by other evidence which in itself and without the aid of her testimony tended to connect the defendant with the commission of the charged offense. The court declined to so charge, and charged that she was not an accomplice. I think the failure to charge as requested was error. The accused also requested the court to charge that *Page 183 the mother was an accomplice. The court declined to so charge, and submitted that question to the jury for their determination whether she was or was not an accomplice. I think no erroragainst the accused was committed in such particular, for on the evidence the mother, as a matter of law, was not an accomplice and the court ought so to have charged the jury. Where the evidence on the subject is undisputed, as here it was, the question of whether a witness is or is not an accomplice is one of law for the court, and should so be declared and not left to the jury to determine it as matter of fact. State V. Coroles,74 Utah 94, 277 P. 203, 204.
The woman on whom the abortion was committed, having freely and voluntarily consented thereto — indeed solicited, requested, and participated in the operation — was under the statute presently to be noted an accomplice, and the court should so have charged the jury. I am aware that a different rule was declared in the McCurtain Case. There the court held that the woman on whom the criminal abortion was performed was not an accomplice, though the operation was performed at her request and with her consent. Said the court:
"While, no doubt the female who requests or consents to a criminal operation with a view of producing an abortion is morally in fault, yet she is not guilty of the offense, and cannot be prosecuted under the statute. She therefore is not an accomplice."
Because of the statute, I think such holding was wrong and should be overruled. The statute, chapter 2 (of Penal Code) relating to "Abortion," consists of R.S. 1933, 103-2-1 and 103-2-2. The first section is:
"Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take, any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than ten years." *Page 184
The next section, 103-2-2, immediately following is:
"Every woman who solicits of any person any medicine, drug or substance whatever, and takes the same, or who submits to any operation or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than one nor more than five years."
There also is a statute, R.S. 1933, 105-32-14, that:
"Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, * * * the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense was committed unless she is corroborated by other evidence."
Such sections are all in pari materia directly relating to the subject of "abortion." All of such sections and under the same heading were in existence and in full force when the alleged offense in the McCurtain Case was committed and tried. Comp. Laws Utah 1907, §§ 4226, 4227, 4858, and Comp. Laws Utah 1917, §§ 8118, 8119, and 8988. By the opinion in the McCurtain Case reference is made to what is now R.S. 1933, 103-2-1, but no reference whatever is made to any of the provisions of either what now are R.S. 1933, 103-2-2 or 105-32-14. In view of such statutory provisions, it is difficult to understand the statement made and conclusion reached in the McCurtain Case that the woman on whom the miscarriage or abortion was committed, though at her request and with her consent, "cannot be prosecuted under the statute. She therefore is not an accomplice." As is seen by R.S. 1933, 103-2-1, supra, it is provided that every person who provides or supplies any drug, etc., or uses any instrument or other means to procure a miscarriage of a pregnant woman (unless the same is necessary to preserve her life), is punishable by imprisonment in the state prison not less than two nor more than ten years; and by the following section, 103-2-2, both in pari materia, it further is provided that every woman who solicits and takes any drug, etc., or submits to any operation or to the use of any means whatever *Page 185 "with intent thereby to procure a miscarriage" (unless the same is necessary to preserve her life), also "is punishable by imprisonment in the state prison not less than one nor more than five years." Thus the one who employs or uses an instrument or other means, and the other who solicits, consents, and submits to the use of them, with the intent to procure a miscarriage or abortion, are both punishable, punishable for the same criminaland unlawful act, procuring, or attempting to procure, themiscarriage or abortion, the only difference being as to the degree of guilt and penalty.
It has been suggested that by the statement referred to in the McCurtain Case the court may have considered that the two sections, the one rendering the person punishable who uses the instrument or other means with intent to procure a miscarriage of a pregnant woman and the other section rendering the woman upon whom such means are employed punishable, if she consents and submits to the use of such means with intent to procure the miscarriage, are two separate offenses; the one because of the use of such instruments or means, and the other because consenting and submitting to the use of them to accomplish thesame criminal and unlawful act, procuring the miscarriage.
In the first place, the language employed in the opinion does not justify any such view. The language is, that the woman on whom the miscarriage was committed, though at her request and with her consent, "cannot be prosecuted under the statute." It is more probable that the provisions of R.S. 1933, 103-2-2 or of 105-32-14, were not called to the attention of the court or otherwise were inadvertently overlooked. At least no reference is made to them in the opinion. In the next place, the fair import of the statute is, when both R.S. 1933, 103-2-1 and 103-2-2, supra, are considered together as they should be, that the person who with criminal intent employs an instrument or other means to procure a miscarriage of a pregnant woman, who with the same intent and purpose requests, consents, and submits to the *Page 186 use of such means, that both are guilty, though in different degrees or penalties.
What was said by the court in the case of State v. Carr,28 Or. 389, 42 P. 215, 216, may well here be said that:
"Under all the authorities, one who, being of mature years, and in possession of his ordinary faculties, knowingly and voluntarily cooperates with or aids and assists another in the commission of a crime, is an accomplice, without regard to the degree of his guilt," citing 1 Russell on Crimes 49; Wharton on Crim. Ev. § 440; Rice on Crim. Ev. § 319; Bishop on Crim. Proc. § 1159.
A witness is an accomplice in a crime not only where he may be indicted for the charged offense, but also where he may be charged with an offense directly connected with or growing out of the same criminal and unlawful act or transaction because of the part taken therein by him aiding and participating in the commission of it. People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L.R.A. (N.S.) 704. To that effect in principle is the case ofState v. Coroles, supra, where the definition of an accomplice as defined by Wharton, 1 Crim. Ev. (10th Ed.) § 440, p. 921, is approved, that:
"An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. The co-operation in the crime must be real, not merely apparent."
So, too, in the case of State v. Wade, 66 Utah 267,241 P. 838, 839, where it is stated that "the essential characteristic of an accomplice is therefore criminal guilt," and where the statement in the case of People v. Coffey, supra, is quoted with approval, that:
"This, then, is the true test and rule: If in any crime the participation of an individual has been criminally corrupt he is an accomplice. If it has not been criminally corrupt he is not an accomplice."
Thus we have a statute, R.S. 1933, 103-26-41, that every person who gives or offers or promises to give to any witness, etc., to influence his testimony, is guilty of a felony; and by the next section, 103-26-42, that every person who *Page 187 is a witness or about to be called as such, who receives or offers to receive, any bribe to influence his testimony, etc., is guilty of a misdemeanor. There also are other sections which provide that every person who gives, or offers to give, a bribe to influence a juror, a judicial or other officer, etc., to influence his decision or official action, etc., and every such person who receives, or agrees to receive, a bribe for such or other corrupt purpose, are both guilty and punishable. Says the author in 1 R.C.L. § 7, p. 161, that:
"It may be stated as a general rule, that a person offering, giving or paying a bribe is an accomplice of the person who receives it, particularly wherever the statutes make it a crime for the person to offer, give or pay, and a crime for a person to receive, a bribe. But wherever the statutes are silent either as to the person who offers, gives or pays the bribe, or as to the person who receives, the one is not an accomplice of the other."
The same doctrine is stated by the annotator in notes toState v. Duff, 144 Iowa 142, 122 N.W. 829, 24 L.R.A. (N.S.) 625, 138 Am. St. Rep. 279. Among the cases cited as supporting such view are: People v. Coffey, supra; People v.Bissert, 72 A.D. 620, 76 N.Y.S. 1022, affirmed in 172 N.Y. 643,65 N.E. 1120; State v. Carr, 28 Or. 389, 42 P. 215;State v. Routzahn, 81 Neb. 133, 115 N.W. 759, 129 Am. St. Rep. 675; People v. Southwell, 28 Cal. App. 430, 152 P. 939;People v. Hyde, 156 A.D. 628, 141 N.Y.S. 1089; People v. Winant, 24 Misc. 361, 53 N.Y.S. 695; State v. Smalls,11 S.C. 262; Morawietz v. State, 46 Tex.Crim. R. 80 S.W. 997;Ruffin v. State, 36 Tex.Crim. R., 38 S.W. 169.
There are some cases to the contrary, chiefly, State v.Wappenstein, 67 Wash. 502, 121 P. 989, and State v. Durnam,73 Minn. 150, 75 N.W. 1127. By the former it is stated that "the fact that witnesses are accomplices goes only to their credibility, and a conviction may be sustained upon their uncorroborated testimony," a rule in direct conflict with our statute (R.S. 1933, 105-32-18), and which by a long line of decisions does not obtain in this jurisdiction. *Page 188 The latter is criticized and repudiated by Mr. Justice Henshaw inPeople v. Coffey, supra, whose definition of an accomplice was heretofore approved by this court.
It is well recognized by all of the authorities that an accessory before the fact is an accomplice (1 R.C.L., § 5, p. 159), and by nearly all the authorities that every one who advises, aids, and participates in the commission of a crime, whether as principal or as an accessory before the fact, is an accomplice (notes, State v. Duff, 144 Iowa 142,122 N.W. 829, 24 L.R.A. (N.S.) 625, 138 Am. St. Rep. 275). By R.S. 1933, 103-1-43, the statute makes all persons principals who under the common law were accessories before the fact.
Logically, I see no difference in cases of abortion where the person who uses an instrument or other means with criminal intent to produce a miscarriage of a pregnant and matured woman, and where she herself with the same criminal intent requests, consents, and submits to and participates in the commission of the miscarriage, and where, as here, by statute both arepunishable. To say, as it is in some of the cases, that the woman is a "mere victim," is no answer. Usually in such cases the physician does not seek or solicit the woman nor inveigle her into his office for the purpose of producing an abortion upon her, or, by an overpowering influence, persuade or compel her to submit to such an operation without her consent. On the contrary, the woman usually, because of her poverty or misfortune, or to avoid exposure of her virtue or of her social standing, or for other reasons not desiring children, seeks and solicits the physician and requests and sometimes implores or pleads with him to relieve her from her pregnant condition. And where in such case he undertakes to do so, both under the statute are guilty and punishable.
Further, by 105-32-14, supra, that upon a trial for procuring, or attempting to procure, an abortion, the defendant shall not be convicted upon the testimony of the woman on whom the abortion was committed, unless her testimony is corroborated by other evidence, the Legislature clearly indicated *Page 189 that the woman in effect is an accomplice and that, to convict, her testimony required corroboration. Unless the Legislature so regarded her, I see no purpose requiring corroboration of her testimony.
Again, it seems illogical to say that a nurse who aids and assists in the operation, the putative or natural father of the child, the husband or intended husband of the prosecutrix, her mother or other relative or person, who solicit, procure, and employ the physician to perform an abortion on a pregnant woman, or who advise, aid, and abet in its commission, are all accomplices, but the prosecutrix, a matured woman, who herself solicits, requests, and employs the accused to perform the abortion, and freely and voluntarily consents and submits to and aids in its commission, and who by the statute declared to be afelon and punishable, is not an accomplice. If because of public policy, or of necessity to obtain convictions, it be thought immunity should be granted a matured woman on whom an abortion, though at her request and consent, is committed and not to be regarded as an accomplice, and that, to convict, her testimony need not be corroborated, let such be the declaration of the Legislature, instead of declaring her a felon and punishable as it has and to convict the defendant of the commission of the offense requiring her testimony to be corroborated by other evidence.
In the absence of such specific statutes declaring a pregnant woman a felon and punishable for a miscarriage committed upon or with her consent and at her request, and that on a trial for procuring, or attempting to procure, an abortion, etc., "the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense was committed unless she is corroborated by other evidence," courts divide as to whether the woman, under a general accomplice statute, such as R.S. 1933, 105-32-18, supra, of our statute, is or is not an accomplice. Most of the courts in such case holding that she was not an accomplice do so because she was not indictable or punishable for the commission of the offense, and hence could not be prosecuted under *Page 190 the statute. Where, however, as here, she may be prosecuted, and where, as here, no conviction shall be had on her testimony, unless corroborated by other evidence, she, by the great weight of authority, possesses all the elements and general tests of an accomplice, and hence properly should be regarded as such.
I thus am of the opinion that the holding in the McCurtain Case that the woman on whom the miscarriage was committed, though at her request and with her consent, was not an accomplice, is contrary to the sections of the statute referred to, and therefore should be overruled.
Now as to the charge on the subject in the case in hand. The trial court as to the testimony of the mother stated the law to the jury on the subject of an accomplice as provided by the statute, Comp. Laws of Utah 1917, § 8992, now R.S. 1933, 105-32-18, supra, but left the question for the jury to determine whether she was or was not an accomplice. That was error. On the undisputed evidence, she was not an accomplice. The court ought to have so charged. Since the error was in the accused's favor, it thus was harmless.
Now as to the woman on whom the operation was committed: While the court stated to the jury the substance of 103-2-2 of the statute, supra, that every woman, etc., who submits to an operation with intent to procure a miscarriage, etc., was punishable by imprisonment as by such statute provided, the substance of 105-32-14 of the statute, supra, that upon a trial for procuring an abortion, etc., the defendant could not be convicted upon the testimony of the woman, etc., unless she wascorroborated by other evidence, yet, in connection therewith,further charged that she was not an accomplice, and that such provisions of the statute could be considered by the jury onlyas bearing on her credibility; in other words, the court so put the proposition to the jury that, notwithstanding the statutes referred to, if the jury believed the woman credible, they could convict the defendant upon her testimony without corroboration. The evident effect of the statute, R.S. 1933, 105-32-14, is that *Page 191 no conviction may be had on the uncorroborated testimony of the woman, whether the jury believed her testimony to be true or not. Such a proposition was not, but a contrary one, was put to the jury. Whether the court believed that the woman was or was not an accomplice, still, under the statute referred to, he wasrequired to charge that no conviction could be had on theuncorroborated testimony of the woman, regardless of her credibility or the want of it. Nor did the court, as to the woman on whom the operation was committed, charge as provided by R.S. 1933, 105-32-18, supra, that no conviction could be had on the testimony of an accomplice, unless corroborated by other evidence, "which in itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense," etc., and as was charged by the court as to the mother, if the jury found her to be an accomplice; in other words, as to the testimony of the mother, the court left it to the jury to say whether she was an accomplice, but, as to the woman on whom the offense was committed at her request and with her consent, she was not an accomplice, and, though the court charged that under the statute she herself was punishable and that the defendant could not be convicted on her testimony unless she was corroborated by other testimony, yet took the very heart out of such provisions by charging that they could be considered by the jury only as affecting her credibility, and thus, if the jury believed her testimony credible, the defendant could be convicted, though her testimony was not corroborated, a proposition in the very teeth of the statute.
It is fairly evident that the court, because of the ruling in the McCurtain Case, felt constrained to charge the jury that the woman on whom the alleged offense was committed was not anaccomplice, nevertheless deemed it necessary to charge with respect to the statutes referred to, but erroneously charged the purpose — only as affecting the credibility of the woman on whom the offense was committed — for which such provisions could be considered. The charge on *Page 192 the subject is inconsistent and not in accordance with the statute forbidding a conviction upon the uncorroborated testiony of the woman, and had the undoubted effect to misdirect and mislead the jury to the prejudice of the defendant.
I thus am of the opinion, for the reasons stated, that the judgment of the court below should be reversed and the case remanded for a new trial.