dissenting:
In jurisdictions other than ours, the question whether, upon a trial for murder where death results from abortion, evidence of a previous unlawful abortion or abortions committed by the defendants upon a woman or women other than the deceased may be admitted for the purpose of showing the unlawful intention of the accused in doing the alleged acts charged by the indictment, is one upon which the adjudicated cases are in conflict. In our own State the proposition has been determined against the contention of the prosecution by. the case of Baker v. People, 105 Ill. 452, which was a .prosecution for attempted abortion. The precise point now under consideration was there, involved. The court, after stating the general rule that in the trial of a party for one offense growing out of a particular transaction, evidence of a substantive offense resulting from another and entirely separate transaction cannot be received, continued: “An exception to this rule is found in prosecutions for passing counterfeit money, and the like, where previous attempts to pass counterfeit money may be proved for the purpose of showing guilty knowledge, but the principle involved in this class of cases has no application to the case in hand.”
The majority regard the doctrine there enunciated as •repudiated by the later case of Scott v. People, 141 Ill. 195. This seems to be a misapprehension. That prosecution was for an attempt to produce an abortion and was against the father of the unborn child. Evidence was admitted tending to show that he had made what the defense regarded as three separate attempts to remove the same foetus. It was urged that it was improper to receive evidence of more than one attempt. This court, in disposing of this ,assignment, said: “Third, it is assigned' as error that there was an improper admission of testimony., It is said that the court admitted testimony as to three distinct felonies. We think that the second and fourth counts-charge but one offense. -The same offense may be set out in several counts in different language. It is said that the use of the instruments on or about October 15 was one attempt and the use of them twice in the middle of November constituted two other attempts, and that proof of three different attempts was thus allowed to come in. Upon a careful examination of the record we find the defendant’s counsel allowed evidence of the use of the instruments at three different times to be admitted without objection; nor do we find that any motion was made to exclude any part of this testimony, nor was the court asked to put the People to their election. But we think the testimony was competent. Acts of the defendant tending to show his knowledge of a woman’s pregnancy and his intention to commit an abortion upon her may be proved whether they were prior or subsequent to the particular act charged in the indictment. The three acts proven in this case were not unconnected but were parts of one transaction. They all together constituted but one attempt to procure the same abortion. ‘Where several felonies are connected together and form part of one entire transaction, then the one is evidence of the character of the other.’ (Lamb v. State, 66 Md. 287.) ‘Whether it [the evidence] was of acts which formed part of the principal transaction, or of acts of the defendant at other times, it tended to prove attempts of the defendant to procure the identical result, the intent to procure which constituted the gist of the offense charged.’—Commonwealth v. Corbin, 136 Mass. 430.”
The evidence was there held to be competent because “the three acts proven in this case were not unconnected but were parts of one transaction. They all together constituted but one attempt to procure the same abortion.” How can it be said that this holding repudiates the doctrine of the Baker case, when that doctrine is not mentioned, when the Baker cáse is not alluded to, and when there is nothing whatever in the later case inconsistent with the earlier’ case or the doctrine thereof, and how can it be said that the Scott case justifies the admission of evidence tending to show that the accused has committed criminal abortions upon women other than the deceased, when that decision is expressly placed upon the ground that the different acts there proven were all part of the same transaction, being designed to produce one and the same abortion ? The majority opinion herein is the first departure from the law as stated in Baker v. People, supra.
It is true that the evidence in the case at bar very .strongly indicates the guilt of plaintiff in error. The question for us is not whether she is guilty, but, conceding her guilt, can the judgment be affirmed without destroying one of the safeguards heretofore deemed necessary and proper in this Sthte for the protection of persons charged with crime? To this the only answer must be a negative. If in every case where a revolting crime, such as this, has been committed, and where the evidence strongly indicates the guilt of the accused, wq disregard a salutary rule adopted to prevent the conviction of innocent persons in order that affirmance may be had, this court will, in effect, become a court, of first instance instead of a court of review, and our decisions will depend, not upon the question whether prejudicial error has intervened and whether the prisoner has enjoyed the fair and impartial trial guaranteed by the law, but upon our own conclusions in reference to the sufficiency of the evidence to show guilt.
It is highly important that the guilty be punished, but it is far more important that barriers erected by the law and designed for the protection of the innocent should not be broken down by this court, even for the purpose of affirming the conviction of a person who appears from the evidence to be guilty. Laws established to prevent the conviction of innocent persons are not to be disregarded by us merely because we may believe, upon a consideration of all the evidence, that the accused in any particular case is guilty. ' •
It is true, as a general proposition, that where it appears from the evidence, beyond all reasonable doubt, that the prisoner was guilty and that an error occurring in the trial court was harmless, there should be no reversal. Error, where shown, however, is presumed harmful, and the burden is then upon the party seeking to avoid its effect to show that no injury resulted therefrom. In this particular .case, even conceding the guilt of the accused, it can not be said that the improper evidence was harmless. • The jury could have fixed the defendant’s term of imprisonment at any period not less than fourteen years. They did fix it at twenty years. Can it be doubted that the testimony wrongfully admitted, tending to show that she was an old and hardened offender, who had repeatedly violated this particular law, added to the length of the sentence?
In Farris v. People, 129 Ill. 521, a prosecution for murder; incompetent evidence calculated to arouse the passions and inflame the minds of the jury to the prejudice of the defendant was admitted, and in answer to the contention that the error was harmless this court said (p; 533) : “It is suggested, and pressed by way of argument, that although the trial court may have erred in allowing this proof, yet, the case being so clearly made out by other evidence and the defense so utterly futile, the error should be held harmless. If the only punishment for the crime of murder in this State was death, the point would be entitled to weight. If it was within the province of the court to assume that the jury would have inflicted the death penalty because the proof of guilt justified it, or if our decision was to affect this case alone, we might hesitate to order á reversal on this theory. The legislature has seen fit to clothe juries with a wide discretion in fixing the punishment to be inflicted upon one convicted of murder. Every defendant on trial for that crime is entitled to the full benefit of the statute. When all else has failed him he has a right to stand before a jury unprejudiced by incompetent, irrelevant evidence, and appeal to them to spare his life. It is impossible for us to know what the jury in this case would have done but for the introduction of this incompetent evidence, much less is it our province to say what they should have done, and no opinion is expressed on that subject. We can only judge of the influence of such testimony upon the minds of the jury by experience and observation common to us all. Here was proof of a distinct felony,— the disgusting and abho'rrent facts attendant upon the commission of that most brutal and infamous crime given in detail. No one need bfe told that from that moment, if the evidence was believed, all feeling of commiseration and mercy toward the defendant must have fled the minds of the jury. There was left for him no possible escape from the death penalty. But aside from all these considerations, we are required to settle a rule of evidence in criminal trials, not merely with reference to this case, but in consideration of future consequences and other rights, and we cannot, from that consideration alone, hesitate to hold that there was such manifest and prejudicial error in the admission of evidence by the trial court in this case as must work a reversal of its judgment.”
The majority opinion escapes the effect of this forceful reasoning only by overruling a decision which has stood unquestioned as the law of this State since 1883. Such a radical course should not, in my judgment, be taken mérely to avoid a reversal of this judgment and a re-trial of the prisoner. Baker v. People, supra, which has been approved in Bishop v. People, 194 Ill. 365, and in Schultz v. People, 210 id. 196, should be followed instead. Moreover, this case is akin to the Farris case in another respect. The evidence in question was wholly and entirely unnecessary, and that being true, as was said in the case just referred to, “it may well be doubted whether testimony so strongly calculated to prejudice the jury against the defendant should have been admitted even though it tended to prove a motive, such proof not being necessary to the case.”
The insistence of the prosecutor that proof of previous unlawful abortions produced by the accused was necessary for the purpose of showing that the abortion in question was not committed as necessary for the preservation of the mother’s life was apparently.a mere subterfuge, made use of for the purpose of introducing incompetent proof that would seriously prejudice the cause of the accused. The evidence showed plainly that the deceased was a strong woman and in good health when she placed herself in the hands of plaintiff in error. She had previously borne three children. The three physicians who conducted the post mortem testified that it was not necessary to cause her to abort or miscarry in order to save her life. This established the fact that the abortion was not necessary for the preservation of the life of the mother, which is all that is necessary to satisfy the statute in that regard, (Beasley v. People, 89 Ill. 571,) and as it was not contended on the part of the defense that any such necessity existed,’ but, on the other hand, that the accused had not committed the abortion for any purpose, there was no reasonable excuse for the admission of this highly prejudicial evidence to negative the exception contained in the statute, even had such evidence not been otherwise objectionable.
There is set out in the majority opinion the greater part of a dying declaration made by Marie Hecht, deceased, which was admitted in evidence, and which tended to show that her death was caused by an abortion committed upon her by plaintiff in error. The first portion of the statement so admitted was in the words following: “I, Marie Hecht, now lying dangerously ill at the St. Elizabeth’s Hospital, and believing I am about to die, make this, my ante-mortem statement.” These words immediately preceded the language which is found in the majority opinion and which is there quoted from the same declaration. The admission of the statement is justified by the majority on the theory that plaintiff in error made no denial of the truth thereof when it was read in her presence at the time it was signed by Marie Hecht. In addition to a general objection to the admission of this dying declaration, the plaintiff in error, after the declaration was admitted in evidence, moved to strike out the portion thereof which I have quoted, and this motion was denied. I' think it was improper to admit the dying declaration for any purpose, but, in any event, the portion thereof at which the motion was aimed should not have gone to the jury. It was undoubtedly regarded by the jury as adding weight to the declaration, and it does not remove this difficulty that the jury may have been otherwise advised by proof that Marie Hecht was, at the time of making the statement, near unto death. The words just quoted were particularly prejudicial, because the jury were thereby informed that the statement was made by Marie Hecht when she knew that she was confronted by certain and immediate death; and they would be more inclined to regard her statement as true than they would if it did not appear to them that she knew she was about to die at the time she made it. It cannot be contended that these words had anything to do with any implied admission made by the plaintiff in error, or that they threw any light upon or gave any force or significance to her silence at the time she heard the declaration read.
I am also of opinion that the sixteenth and seventeenth instructions given at the request of the People were fatally defective, and that the words of the prosecutor in cross-examination and his remarks in argument were of that intemperate and improper character which forbids affirmance.
The judgment should be reversed and the cause remanded for a new trial.
Farmer and Vickers, JJ.: We concur in the foregoing dissenting opinion of Mr. Justice ScoTT.