
    Supreme Court—General Term—Third Department.
    
      November, 1884.
    PEOPLE v. VEDDER.
    (Affirmed, 3 N. Y. Crim. Rep. 32.)
    Abortion—Evidence of person upon whom it was performed —Such person not accomplice.
    Upon the trial of defendant, upon an indictment alleging that he and another person used instruments upon the body of a certain Annie A. Walters, the only direct proof connecting defendant with the offense was the evidence of said Annie A. Walters, who testified that she submitted to the operation upon his advice and procurement; that the operation was performed by one Dr. Patterson at his office by the use of an instrument, the defendant not being present. A witness testified, that about a month thereafter he found in Dr. Patterson’s office, certain instruments useful for the purposes of procuring an abortion. Defendant’s counsel requested the court to charge “that the finding of the tools in Mr. Patterson’s office, is not any evidence of corroboration of Annie A. Walters on this question of the committing an abortion, as against Mr. Vedder.” Held, that a refusal to so charge was not error.
    The evidence of the finding of the instruments tended to corroborate Annie Walters’ testimony as to the commission of the abortion and was competent as against Mr. Vedder for that purpose.
    The person upon whom an abortion is performed is not an “ accomplice ” under § 399 of the Code of Criminal Procedure (per Landón, J.).
    Appeal by Alfred F. Vedder, defendant, from a judgment of the Court of Sessions of Albany county, of April 18, 1884, convicting him of the crime of abortion.
    The defendant, together with James A. Patterson, was indicted by the grand jury of Albany county, under section 294 of the Penal Code, charging that they used instruments upon the body of one Annie A. Walters to procure her miscarriage.
    There are five counts in the indictment. The first charges the defendants with using wires and bent rods. The second count, with using and causing certain instruments, to the jury unknown, to be used in procuring the miscarriage. The third, with prescribing, supplying, and administering certain drugs, thereby producing an abortion. The fourth count, with' advising and causing her to take certain medicines. The fifth count, with feloniously prescribing, supplying and administering to her, the said Annie A. Walters, etc.
    Upon the trial, Annie A. Walters was a witness for the people. It appears by her evidence that the defendant was a minister having charge of a church at West Milton, Saratoga county, upon which church Annie was an attendant, and there formed his acquaintance. Some two or three years before the event in question, Annie left her home and went to reside in the city of Troy, where she followed the occupation of a dressmaker. She visited home frequently and the acquaintance between herself and her pastor grew into intimacy, and he visited her from time to time at the city of Troy, until finally, in the month of January, 1883, at the city of Troy, partly by persuasion and partly by force, the defendant accomplished her ruin. From that time forward, the illicit connection between them continued until Annie discovered that she was pregnant, and under the advice of, and upon one occasion accompanied by the defendant, she sought the office of Dr. Patterson, in the city of Albany, who finally, and on or about August 13, 1883, performed an operation upon her as a result of which she was delivered of twins.
    
      J. H. Clute, for defendant, appellant.
    On the trial of this case Annie A. Walters, the party upon whom this operation was performed (if an operation Was performed), was called by the people as a witness, and gave evidence, and we claim was uncorroborated in her evidence against the defendant Vedder. The judge in the the court below charged the jury that Annie A. Walters was not an accomplice and that they could convict on her evidence standing alone.
    If she was an accomplice then the charge was wrong; for by section 399 of the Code of Criminal Procedure, “ a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”
    It will not do to say that the court charged the jury that Annie A. Walters ought to be corroborated on matters connected with the commission of the crime, or matters tending to prove the commission of the crime, and that charge or request covered the error, if error it was, to charge that she was not an accomplice; that although it would be better that she be corroborated yet it was not necessary ; that the jury had a right to believe her evidence standing alone if they chose. Notwithstanding all this, if the judge had charged that she was an accomplice and must be corroborated or no conviction could be had, with that charge the jury would have acquitted.
    Bouvier says, “ An accomplice is one who is in some way concerned in the commission of a crime though not as a principal.”
    “ The term in its full sense includes in its meaning all persons who have been concerned in the commission of a crime. 
      Allparticejps crimines whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.”
    Webster’s definition of an accomplice is, “ A co-operator or associate in general.”
    In law, “ An associate in crime.”
    “ An accomplice carries into effect, executes and completes.”
    “An accomplice is one who is directly engaged in doing the deed, or is held by construction of law to have been so engaged.”
    See suggestion in Webster’s Dictionary under the word Abettor.
    Take this case and Miss Walters’ evidence. She says she took down her tight drawers, before the operation. She took down her drawers to have Patterson operate on her. In that she assisted Patterson. Suppose the operation had been performed on some other woman, and Miss Walters had stripped down her drawers to prepare her for the operation, would she not then have assisted in the performance of the operation ?
    And when she does the same thing to herself she is no less an assistant and accomplice in the act or deed or crime. She assists in the operation, also in the crime.
    It has been held in the following cases that she is an accomplice. People v. Costello, 1 Denio, 83; People v. Dunn, 29 N. Y. 523.
    In the case of People v. Dunn, supra, the court says that the acquittal of the defendant on the ground that the woman was an accomplice could not have been sustained. She did not stand legally in the situation of an accomplice, for although she no doubt participated in the immoral offense imputed to the defendant, she could not have been indicted for that offense. When this decision was made she could not, and that being the reason for the holding of the court the cause for the technical holding has been removed by section 295 of the Penal Code.
    By section 295 of the Penal Code the woman who takes the drug or submits to the use of instruments is liable to the same punishment the person is who prescribes drugs or uses instruments ; so now in law the woman who takes the medicine or submits to the use of instruments stands legally in the situation of an accomplice, and is an accomplice, particularly when she takes part in performing the operation that produces the miscarriage, as did Walters in this case.
    The learned judge who presided in this case said in his charge to the jury: “ I charge you that Annie A. Walters cannot be indicted with the defendant for the offense charged in the indictment, and is not under the statute technically an accomplice.”
    This was excepted to. This we claim was error and misled the jury. Tedder was but an accomplice. See section 295 of Penal Code, which makes the offense of the woman for taking medicine or submitting to an operation or performing it herself the same as any other person. There is no reason under this Code why the woman and all parties concerned in the transaction cannot be indicted jointly in one indictment.
    
      D. Cady Herrick, district attorney, for the people.
   Learned, P. J.

The request of the defendant’s counsel refused by the court was, that the court should charge that the finding of the tools in Mr. Patterson’s office is not any evidence of corroboration of Annie Walters on this question of the committing an abortion, as against Mr. T.”

Two things were to be proved. 1. The commission of the abortion. 2. The connection of Tedder with the act.

If the finding of the tools tended to the corroborate Annie Walters on the former, the proof was admissible. If admissible it was admissible against Mr. Tedder.

Had the defendant’s counsel asked the court to charge that this evidence did not tend to corroborate Annie Walters in respect to connecting Mr. Tedder with the alleged crime, he would have made a proper request.

But suppose the court had charged as requested; what would the charge have been % That as against Mr. Tedder the finding of the instruments was no corroboration on the question of committing an abortion. That would not have been correct.

True, the evidence did not tend to connect Mr. Tedder with the act of committing an abortion. But it did tend to corroborate Annie Walters in her testimony that an abortion had been committed.

It was competent as against Mr. Tedder for that purpose. And the judge did not say that it was competent as corroborating her evidence about Mr. Tedder’s connection with the act.

A burglary is alleged to have been committed. Burglars’ tools found at the placeare competent evidence that a burglary has been committed. They do not, of themselves, tend to connect the prisoner with the crime. But, they are competent as against him.

It is not to show that Annie Walters told the truth in one instance, and therefore is to believed in the other, that the evidence is given. It is to prove the fact of the abortion, so that this shall not be left to her unsupported evidence. As to connecting Mr. Tedder with the act, her evidence, under the usual rule should also be corroborated.

I see no error.

Bockes, J.

The only point of difficulty in the case, as I think, is that considered by Mr. Justice Landon in his opinion growing out of the refusal of the court to charge the jury “ that the finding of the tools in Mr. Patterson’s office, was not any evidence of corroboration of Annie Walters on the question of the committing of an abortion, as against Mr. Tedder.” The court had instructed the jury, immediately preceding such refusal, at the instance of the defendant’s counsel, that the witness Annie Walters must be in all things corroborated on matters connected with the crime. Then followed the request to charge as above stated, which request was refused. The request, as will be observed, went to or bore upon the question, whether an abortion had been committed. This was the leading fact to be proved in the case—a fact necessary to be established against the defendant in order to convict him of the offense for which he was on trial. How, any proper evidence bearing upon this leading fact was competent as against the defendant. The witness, Annie Walters, testified to facts and circumstances attending the commission of the act by Patterson in his office, the defendant not being present. She testified to his use of an instrument upon her person.

Proof was given of the finding of implements useful for the purpose intended to be accomplished, in Patterson’s office. Now for the court to have charged as requested, that the finding of the tools in Patterson’s office, was not, as against the defendant any evidence in corroboration of the witness, on the question of the committing of the abortion, would have been improper, hence the refusal was not error. Had the request been this ; that this evidence did not corroborate this witness in her statement connecting the defendant with the erim of abortion testified to by her, the case would have been quite different. Judging from the Whole tenor of the trial, this instruction would have been given by the court, had a request therefor been made. Indeed, the court did charge, as requested by the defendant’s counsel in the next proposition submitted by him, “ that the fact that Annie Walters was corroborated in the situation and the condition, and the things that were found in the room of Dr. Patterson, was no evidence of corroboration, with reference to the offense charged against Vedder.”

This instruction was in fact given.

In my opinion the conviction and judgment should be affirmed.

Landon, J.

The trial court instructed the jury that the female upon whom the abortion was performed, and who was the only witness against the defendant as to his commission of the offence cannot be indicted with the defendant for the offense charged in the indictment, and is not, under the statute, technically an accomplice.”

This instruction was authorized by Dunn v. People, 29 N. Y. 527. The 294th section of the Penal Code, under which the prisoner was indicted, and the 295th section, under which the female who submitted to the operation might have been indicted, are not, in any matters material to the question now presented, different from the second and third sections of chapter 260, Laws of 1845. Then, as now, the person who advised and the female who consented to the abortion were indictable; each one for his or her separate statutory offense.

The learned judge, in other parts of his charge, stated the law accurately and fairly with respect to the corroboration of the prosecutrix. He said : “ Though she is not technically an accomplice, she is liable to an indictment for an offense growing out of the same transaction.

“ She stands, in her relation to the offense, very much in the nature of an accomplice, and therefore, her evidence should be scrutinized and received with care, and should be corroborated upon material facts relating to the guilt of the defendant. Still, there is no such inflexible rule,” i. e., that she should be corroborated. “ Her statements should be received with caution, and the defendant should not be convicted, and it would not be safe to-convict, upon the uncorroborated testimony of a person equally liable to punishment with the defendant. But, after all, if her testimony carries conviction to your minds and you are fully convinced of its truth, you should give full effect to it.”

Such has long been the language of the courts. Dunn v. People, supra ; People v. Costello, 1 Denio, 83 ; Fraser v. People, 54 Barb. 306 ; Commonwealth v. Wood, 11 Gray, 85.

Corroboration in a case of this kind is not a condition precedent to conviction, but a prudent caution will seek for greater safety in finding corroboration, and such corroboration will be in matters connecting the defendant with the offense.

We have examined the alleged grounds of error assigned by the defendant’s counsel, and find none, unless in the following particular : The defendant was not present when the operation resulting in the abortion was performed. He offered no testimony tending to show that it was not performed. His position was, that he had nothing to do with it; neither advised nor caused it. There was no direct testimony that he had advised it, except that of the female who submitted to the operation $ she testified that she submitted to it upon his advice and procurement. Discredited as she was by the transaction itself, it became important for the people to satisfy the jury that her testimony was true. Hot that such testimony would be necessary to support a conviction, but to procure it. She testified that the operation was performed by one Dr. Patterson, at his .office, by the use of an instrument. A police officer testified, under objection by the defendant, that upon search of Dr. Patterson’s office, about a month after the alleged operation, he found certain instruments. These were produced in evidence by the people, the defendant’s objection that the evidence did not tend to connect him with the offense being overruled.

The defendant’s counsel requested the court to charge the jury, that the finding of the tools in Patterson’s office was not any evidence in corroboration of Annie Walters on the question of committing an abortion, as against the defendant Tedder. The court declined so to charge, and stated that he would leave that with the jury.

The jury were thus left to infer that they might consider this testimony to connect Tedder with the offense, or what was probably in the mind of the judge, that the jury were at liberty, if they found she told the truth about Patterson, to find that she also told it about Tedder.

That the evidence tended to corroborate her testimony that an operation had been performed upon her by Patterson, might have rendered it competent, if it had been so restricted. Commonwealth v. Brown, 121 Mass. 69. But it did not tend to connect Tedder with the crime, and in no respect touched him. To make it touch Tedder, it must be assumed that he counseled the operation which these instruments were used to perform, the essential fact sought to be proven.

To allow the jury to believe that Tedder advised the use of the instrument because an instrument is produced, verges upon the whimsical; the court had no such purpose, but it is not clear that the jury did not so reason. And to assume that she told the truth about matters touching Tedder, because she told the truth about matters which did not touch him, is a method so specious and dangerous as to have frequently fallen under the condemnation of the courts. Fraser v. People, 54 Barb. 306 ; Commonwealth v. Bosworth, 22 Pick. 397; Rex v. Webb, 6 Carr. & P. 595.

We cannot know in what manner the jury regarded this testimony. It did not affect Tedder, and he was entitled to the charge requested.

The refusal of the court to charge as requested, entitles the defendant to a new trial.

Judgment and conviction affirmed.  