Commonwealth v. Bricker

Citations

• 74 Pa. Super. 234
• 1920 Pa. Super. LEXIS 129

Syllabus

<p>Grimes — -Abortion—Criminal operation — Evidence — Testimony of surviving husband — Admissibility.</p> <p>In a prosecution of a physician for causing the death of a woman by a criminal operation, a conviction will be sustained where there is sufficient evidence produced to prove that the operation had been performed, and that the woman had died in consequence of it.</p> <p>The testimony of another physician who made a post-mortem examination is admissible, even if the examination is made thirty days after the death, where the witness based his conclusions upon the general examination of the corpse, and upon all the facts which he had found.</p> <p>The testimony of the physician was sufficient to establish the corpus delicti, and the issue was properly presented to the jury, with the instructions that the Commonwealth must not only prove that the woman died from the operation, but must also prove that the operation was committed by the defendant with intent to procure a miscarriage.</p> <p>In such prosecution the husband of the decedent is competent to testify, as he neither divulged confidential communications between him and his wife, nor did he incriminate the deceased. The acts of the wife in her dealings with the physician were not protected by the privilege of confidential communication, nor was her submission to the operation a criminal act. In such a ease the decedent must be considered as a victim rather than an accomplice, and the Act of May 23, 1887, P. L. 159, providing that a husband and wife shall not be permitted to testify against each other does not apply. There can be no indictment for conspiracy to commit a crime where the concerted action of the defendant is part of the criminal act.</p>