State v. Gardner, 227 N.C. 37 (1946)

Dec. 11, 1946 · Supreme Court of North Carolina

227 N.C. 37

STATE v. DR. G. D. GARDNER.

(Filed 11 December, 1946.)

Criminal Daw § 32%—

A written statement made by defendant and evidence of oral státements made by him to officers disclosing that defendant had made a telephone call to the Acting Coroner on the afternoon of the date in question, and testimony of a witness that when he called at defendant’s home a short time after the hour in question, defendant stated that he had called the Acting Coroner is held a sufficient identification of defendant as the person who made the call to admit of testimony by the Acting Coroner as to the telephone conversation had with a person purporting to be defendant.

Appeal by defendant from Bobbitt, J., at January Term, 1946, of BuNcombe.

Criminal prosecution tried upon indictment charging the defendant with the murder of one Mrs. Lois E. Cordell.

The evidence tends to show that -Lois E. Cordell died about 1:30 p.m., on 23 October, 1945, as a result of abortional injuries inflicted in the performance of an abortion. An autopsy was performed on the body of the deceased the day she died by Dr. Curtis Crump, Acting Coroner and expert physician and pathologist. Three other physicians, each admitted to be an expert, were present when the autopsy was performed. The autopsy revealed approximately a pint of blood and blood clots in the abdominal cavity. This seemed to be all the blood in the body; whereas, according to the evidence, there should have been about five quarts. The whole front half of the womb showed a jagged perforation which measured approximately four by two inches. Other lacerations and tears were found, which need not be described here. All the doctors agreed that Lois E. Cordell died within fifteen to thirty minutes after the abortional injuries were inflicted and two of them were of the opinion that she probably died during the performance of the abortion. Dr. Crump testified that there was no evidence of peritonitis, and that in his opinion if these injuries were inflicted prior to 7:30 in the morning and she died at-1:30 p.m., that day, peritonitis would have set in with the amount of damage that was present in her womb.

The State also introduced evidence tending to show that the defendant, on 22 October, 1945, went to the Warren Safe & Lock Company in Asheville, to get a surgical instrument repaired. No one was in who could repair the instrument and the defendant said he could not wait. He took a piece of No. 18 galvanized stove pipe wire and repaired the instrument, leaving about % of an inch of the wire twisted on top of the rivet. The defendant said he could sterilize it and use it.

Verdict: Guilty. Judgment: Imprisonment in the State’s Prison for a term of not less than five nor more than seven years.

The defendant appeals, assigning error.

Attorney-General McMullan and Assistant Attorneys-Generad Bruton, Rhodes¡ and Moody for the State.

Henry G. Fisher and J. W. Haynes for defendant.

Denny, J.

This case was before us on a former appeal in which a new trial was granted. S. v. Gardner, 226 N. C., 310, 37 S. E. (2d), 913.

The first assignment of error is based on an exception to the admission of the testimony, over objection, of the Acting Coroner of Buncombe County, Dr. Curtis Crump, who, in response to a question about a telephone call, testified: “I received that telephone call shortly after 3 :30 p.m., and Dr. Gardner, or a man purporting to be Dr. Gardner, stated that he had called his lawyer and his lawyer had advised him to call the Coroner concerning a deceased individual which he had at his house, his home. He gave the report that the .patient had just been left at his home at 918 Haywood Road by a taxi and that the taxi had immediately driven off before he could find out any further information. He stated that the patient had died before any aid could be given by him or he could ascertain what was wrong with her.”

The defendant contends this evidence was admitted without proper identification of the person with whom Dr. Crump talked, over the telephone, shortly after 3 :30 p.m., on 23 October, 1945, for it to be admissible. He further contends Dr. Crump’s testimony was highly prejudicial in that it tended to create the impression that the deceased had been left at the home of Dr. Gardner in the afternoon and not in the morning of 23 October, 1945, as set forth in defendant’s statement previously made and offered in evidence by tbe State.

Tbe exception cannot be sustained. Tbe written statement of Dr. Gardner and evidence of oral statements made by bim, to tbe officers at tbe time be gave bis written statement, admitted in evidence without objection, disclose that tbe deceased was left by a taxi driver at tbe borne of Dr. Gardner on Haywood Road about 7 :00 or 7 :30 a.m., on tbe morning of 23 October, 1945. Tbe girl died at approximately 1:30 p.m., that day. Dr. Gardner, stated to tbe officers: “There was quite a delay in bis attempt to get tbe Acting Coroner on tbe telephone.” Tbe defendant called an attorney to find out tbe name of tbe Acting Coroner, and after obtaining tbe information, be said: “He . . . called Dr. Crump, tbe Acting Coroner, and told bim that this girl was there and that she bad died and that be did not know who she was.”

Tbe record further discloses that an undertaker was called and went to tbe borne of Dr. Gardner for tbe body. Tbe undertaker arrived about 4:00 p.m., on tbe day in question. Dr. Gardner answered tbe door bell and stated “That be bad called tbe Coroner and bad permission ... to remove tbe body.” Tbe undertaker communicated with Dr. Crump and then removed tbe body of tbe deceased to bis place of business, where tbe autopsy was performed a few hours later.

We think there was ample evidence tending to identify tbe defendant as tbe person who called Dr. Crump over tbe telephone on tbe afternoon of 23 October, 1945, and that evidence as to tbe conversation at that time was properly admitted. Sanders v. Griffin, 191 N. C., 447, 132 S. E., 157; S. v. Burleson, 198 N. C., 61, 150 S. E., 628; Harvester Co. v. Caldwell, 198 N. C., 751, 153 S. E., 325; Cf. Mfg. Co. v. Bray, 193 N. C., 350, 137 S. E., 151, and Powers v. Commercial Service Co., 202 N. C., 13, 161 S. E., 689.

We have carefully considered tbe additional exceptions and tbe assignments of error based thereupon, and they are without merit.

In tbe trial below, we find

No error.