<p>Appeal, No. 85, April T., 1898, by defendant, from judgment of Q. S. Somerset Co., Feb. Sess., 1897, No. 14, on verdict of guilty.</p> <p>Indictment for procuring abortion. Before LongekeckER, P. J.</p> <p>It appears from tbe record, and evidence that the defendant, Dr. W. F. Mitchell, a practicing physician in Petersburg where he was known among the front ranks of his profession, was indicted on the above charge. The commonwealth produced evidence to show that a letter and telegram addressed to defendant had been sent by the deceased: that srrbsequently defendant called on the deceased at a hotel in Somerset; that deceased subsequently went to Pittsburg where she died in a hospital as the result of a criminal operation. Defendant was examined as to what took place at the interview at the hotel and the condition disclosed by his evidence appeared to be somewhat inconsistent with the testimonies of the authorities of the hospital.</p> <p>Defendant denied having received either the telegram or the letter offered in evidence or that he had ever seen or heard from the deceased prior to having been called in by her in a professional capacity at the one interview at the hotel in Somerset. He further denied performing any criminal operation.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned were (1) In admitting evidence on the following offer and objection, Miss Lizzie Thomas, assistant in tbe post office at Scott Haven, Pa., being on the stand: “Mr. Ruppel: Let us have an offer. Mr. Kooser: Counsel for the commonwealth propose to prove by the witness on the stand that a few days before the 30th of December, 1896, near about Christmas, Miss Sadie E. Beal banded to the witness a letter addressed to Dr. Mitchell, Addison, Pa.; that that letter was mailed on the next mail going east, in the direction of Addison from Scott Haven. This to be followed by proof that the defendant was the only Dr. Mitchell resident at Addison in December, 1896, and to be followed by further proof that on the 30th of December, 1896, Sadie E. Beal telegraphed Dr. Mitchell to Confluence, Pa., in these words: ‘Will be on 6 instead of 14, meet me,’ signing instead of her own name ‘ S. E. B. Andrews.’ Mr. Ruppel: This is objected to for the following reasons: 1. It is not shown that the Dr. Mitchell so addressed is the defendant, as there were no initials on the letter. 2. It is not proposed to be shown by proof on part of the commonwealth that Dr. Mitchell, the defendant, received such a.letter.. 3. The defendant denies having received such a letter. 4. The evidence is irrelevant and immaterial. The Court: With regard to the testimony embraced in the offer tending to make out a step in the commonwealth’s case, the evidence is proper for that purpose. We admit it and note an exception to the defense. The witness then testified as follows: ‘ Q. Did you know Sadie E. Beal? A. Yes, sir. Q. Who was with Mr. Mad ore in December last ? A. Yes, sir. Q. Do you have any distinct recollection of her handing you a letter in the latter part of December, and if so, state about when it was and to whom addressed and to what point addressed. A. Well, I remember she came there one morning and handed me two letters, one addressed to Dr. Mitchell, and it was Somerset county; I don’t remember the address, but think it was Addison, and I sent it on the 2 o’clock mail.” (2) In admitting evidence on the following offer and objection: “ Mr. Kooser: We offer in evidence all the exhibits identified .... the telegraphic message as written, signed S. E. B. Andrews, at Mc-Keesport and sent to Confluence, and the message received at Confluence, and the entries on the registers of the Hotel Vannear in Somerset and of the Hotel Federal in Allegheny. Mr. Ruppel: We object to the telegram at McKeesport written by S. E. B. Andrews, as we got no such telegram. The Court: These exhibits are admitted. The exhibit marked ‘F’ which is objected to, is also admitted upon the testimony of the two operators, the one at McKeesport and the one at Confluence; the testimony of the one being that she sent the message, the substance of the message, and that of the other being that she received it, and the two messages being the same in -substance and differing merely in the initials of the name attached, both being signed ‘ Andrews.’ We think they are sufficiently identified as the same message. Note an exception to the defendant as to the McKeesport telegram.” (3) In charging the jury as follows: “ It is charged that the defendant met Sadie E. Beal on the 30th of December, by pre-arrangement, for the purpose of a criminal operation, the theory being that he had been previously advised by letter and understood the purpose of the meeting; that the message of the morning merely apprised him of her coming by a particular train, and that the operation was in fact performed in the few moments he is shown to have been in her room at the hotel. The only evidence produced of any communication prior to the message received by him at Confluence on that morning, related to a letter which the young lady acting as assistant postmistress at Scott Haven testified Miss Beal had mailed at her office the latter part of December, and which was addressed to Dr. Mitchell, as she thought, at Addison, in this county. That letter she said she sent on the 2 o’clock east bound train that afternoon. With regard to a letter thus mailed and not shown to have been received, the law raises a mere presumption that the person addressed received it through the ordinary course of the mails. Against this presumption the defendant positively testifies that he never did l'eceive it. If you believe him it takes out of the case all the significance attached to the alleged previous communication. If not, it might be a potent circumstance in construing the conduct of the parties on the meeting upon the train after the message from McKeesport. The facts connected with the message delivered to the defendant at Confluence have been very fully discussed on both sides, so I need not refer to them more at length.” (4) In charging the jury as follows: “ After the girl died in the hospital and it was manifest an abortion was produced by the criminal act of some one, it seems suspicion was directed to this defendant, and he, to relieve himself of that suspicion, went to the district attorney’s office and related to those present his version of the visit he had made to the unfortunate woman’s room. It is around this statement that the most serious aspects of the case gather. Just what his statement of the affair then was, has become the subject of serious conflict in the testimony of those who were present. Four of them unite substantially in saying that he stated his examination of the woman’s parts developed the fact that a rupture of the sack containing the foetus had already occurred, that the waters had been draining from it and the discharge had in fact attained an offensive odor, while the os, or mouth of the womb, was already greatly dilated, as illustrated by the witnesses. These conditions, you will recall, are inconsistent with those described as found on her arrival at the hospital. It will probably puzzle you to understand how a woman with that degree of dilation of the neck of the womb, and nature struggling to expel the foetus, could travel the many miles covered by Sadie E. Beal’s journey that day. However, it is only the statement which Dr. Mitchell is alleged to have made that day in which that condition is described, and the controversy is between the witnesses as to the manner in which he did describe it. On the part of the defense two witnesses were called who were present and they say no such dilation was exhibited as is stated by the witnesses of the commonwealth, but as they illustrated it with their hands the neck or mouth of the womb was almost closed. And the witnesses are also in conflict as to what he said about the condition of the waters coming from the woman and the nature of the discharge.” (5) In refusing binding instructions for defendant. (6) In the answer to the third point of defendant, as follows: “ That all evidence in this case relating to the alleged mailing of a letter by Sadie E. Beal to the defendant must be entirely ignored by the jury in the consideration and determination of the ease. Answer: Refused.” (7) In overruling motion for a new trial.</p>
