The defendant is accused of having caused' .the death of Gertrude Jackson by committing an abortion on her, not necessary to save her life. She was unmarried, about twenty-five years of age, and died July 14, 1909,
i Criminal lawcoconspiratordeciaratfons* evidence. ' The victim of an abortion may become a co-conspirator with the perpetrator of the offense, in which her acts and declarations done or made pending the alleged conspiracy,
and in promotion thereof, may be proven on trial of such perpetrator. State v. Crofford, 133 Iowa, 478; State v. McGee, 81 Iowa, 17; State v. Caine, 134 Iowa, 147; State v. Crofford, 121 Iowa, 395. But statements or acts of a co-conspirator, before the conspiracy was formed or after its termination, or not in promotion thereof, though provable as admissions against such co-conspirator, may not be introduced against an associate in the conspiracy, on trial therefor, or for a crime alleged to have been perpetrated in pursuance thereof. State v. Crofford, supra.
To render such evidence admissible, two conditions are absolutely essential: (1) That the acts or declarations sought to be shown were done or made pending the conspiracy; and (2) they were in promotion of its object or design. State v. McGee, 81 Iowa, 17; State v. Walker, 124 Iowa, 414; State v. Crofford, 121 Iowa, 395.
z. Same: order of proof. Ordinarily there should be prima facie proof of the existence of a conspiracy, before evidence of any acts or declarations of a co-conspirator is received, but, as the order in which evidence shall be introduced is discretionary with the trial court, it is not necessarily error to allow evidence of such acts and declarations to be adduced in advance of prima facie proof, on assurance that this will be produced subsequently. State
3‘ TOnsEpiracy: evidence. The theory of the state seems to have been that the alleged conspiracy might be shown by declarations of the deceased alone. No authority so holding has been cited, and none can be found. Certainly nothing said in State v. Crofford, 133 Iowa, 478, warrants such a conclusion. There a letter written by the victim of abortion to her paramour, after the latter was shown to have entered into a conspiracy with the defendant therein, was held to be admissible in evidence as tending to establish her connection with the conspiracy; That is, that she was either joining in the enterprise of the other two, or entering into an unlawful arrangement with the one addressed. But no one will pretend that this letter alone implicated the defendant therein. Nor is there any ground for saying that the declarations of deceased alone tended to connect this defendant with any conspiracy.
4’ SAME' II. No motion to strike the evidence referred to was then interposed, and the defendant, in his own behalf, testified that he had met deceased at his office on Saturday July 10; that she told him she .had been sent by another physician; was in trouble; and that he told her he could not take her ease, and gave her no treatment. Even if from this and deceased’s state
s" A E‘ III. Mrs. Hotz also testified that deceased left on Saturday, saying that she was going to see defendant. This evidence was admissible in connection with that of defendant that they did meet on that day. The witness proceeded by saying that on her return deceased reported that defendant had given her a treatment; had inserted a rubber, and had said that the rubber would bring on pains and bring about an abortion; that he had taken away part, and if the rest did not come to return Monday. All this is a mere recital of what deceased is said to have claimed had happened, and purported to be an account of a past transaction, and was inadmissible. Acts or declarations of a co-conspirator, to be admissible, must be in furtherance of the conspiracy; that is, in some measure or to some extent, it must aid or assist toward the consummation of the object of the
The declarations that defendant had given deceased a treatment, and that he had removed a part, were mere recitals of what had happened, and in no manner evidenced present or future assistance in the way of promoting the conspiracy to cause an abortion. Had there been evidence that the rubber was being carried by deceased at the time when she is said to have talked about it, the declarations might be admissible as explanatory of what was then being done to carry out the object of the alleged conspiracy-; but no such evidence had been adduced, and as what she is reported to have said was solely of a past transaction, and not in carrying out the common design alleged to have been formed, was- not admissible.
6. Same. IV. Eugene Newhard, who was responsible for her condition, took deceased to Monticello on Sunday, July 11, but did not accompany her to defendant’s office. Defendant testified that she came, and that he examined her, found no foetal heart, but that there was a discharge of pus, accompanied with a strong odor, and that he did nothing more, and permitted her to remain in the office until evening. Newhard was allowed, over objection, to testify that in asking him to take her to Monticello she had told him that she had had two treatments, but did not say by whom; that in going to the buggy she walked as though suffering from cramps, and sat on the edge of the seat; that on the way home she told him she had taken chloroform and had been operated on, and the child removed. Under the rule as heretofore stated, all this evidence, save of how she walked and sat was of statements of past occurrences, and not admissible. Mrs. Hotz also was permitted to testify that on the following morning deceased related to her that defendant removed the parts while she was under chloro
7. Same: hearsay evidence. V. It appeared that Mrs. Hotz first requested Dr. King to attend deceased on Tuesday, Inly 13, but, as he declined, she telephoned from his office to defendant. She testified to the conversation had with King at the time. The record leaves it doubtful whether proper objections were interposed, but without inquiring into this it will be enough to say, in view of another trial, that the evidence was hearsay, and of a character calculated to prejudice the defendant. The state in a criminal cause is under some obligations to the accused, and one of these is not to offer evidence so clearly inadmissible that this is not debatable, and as appears for the sole purpose of creating or intensifying prejudice against him. The testimony of the conversation of Mrs. Hotz with King is of this character, and there was no excuse for its introduction. Much of Dr. Worthington’s testimony was not properly received in rebuttal. The criticism of instructions may be obviated on another trial, especially in clearly stating the theory of the defense and obviating the error in the fifteenth paragraph. Stutsman v. Sharpless, 125 Iowa, 335.
Because of the errors pointed out, the judgment is reversed and the cause remanded. — Reversed.