
    No. 861
    VARGO v. STATE
    Ohio Appeals, 7th District, Mahoning County
    Decided Oct. 12, 1923
    2. ABORTION.
    Necessary proof under GC. 12412 — 172. EVIDENCE. Former indictment is not admissible in evidence to prove guilt of .accused — 45. ATTORNEY. Counsel for State guilty of misconduct where he refers to scenes at death bed of deceased for purpose of prejudicing the jury.
    Attorneys1 — W. R. Stewart, Youngstown, for Var-go;'H. H. Hull and R. L. Thomas, for State.
   FARR, J.

Epitomized .Opinion

This was a criminal action of malpractice against Mary Vargo, charging her with the crime of abortion upon the person of Mary Gresky on or about the 16th day of September, 1922, from which it was charged that she died on Sept. 20, 1922. The facts disclose that the deceased visited Mary Vargo in September, 1922, at which time, by the use of some instrument an abortion was produced upon the deceased, and later blood poisoning set in, which resulted in the latter’s death. The trial resulted in a verdict of guilty, whereupon the defendant prosecuted error. The chief errors complained of were, first, that the State failed to prove that the abortion was unnecessary; second, that the prosecuting attorney was guilty of misconduct in the development of certain testimony at the trial; third; misconduct in argument. During the trial the State produced in evidence an indictment charging the accused with having committed abortion also. During the final argument, counsel for the State made reference to certain matters which occurred with reference to the dying, woman and the’ accused at the death bed, upon which no evidence had been produced during the trial. In reversing the judgment of the lower court, the Court of Appeals held:

1. Under the authority of Shunn v. State, Ohio Appeals, 9th District, decided Oct. 5, 1923, no such proof is necessary to sustain a conviction under GO. 12412.

2. As a former indictment would have nothing to do with the guilt or innocence of the defendant, its disp'ay before the jury was incompetent and improper.

3. As the occurrences which took place at the death bed were not produced in evidence, prejudicial error was committed by the State’s counsel referring to them in argument, as such matter would tend to prejudice the mind of the jury.  