of the trial judge in admitting in evidence the fact that the defendant had submitted fraudulent invoices in respect to other importations. The learned justice wrote as follows on this question:
'Passing from this, the next point presented for consideration is, whether there was an error in the admission of the evidence of fraud, deducible from the other invoices offered in the case. We are of opinion, that there was none. The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act, taken by itself may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty.'
The rule admitting evidence of this type has been repeatedly approved and applied in the District of Columbia, Partridge v. United States, 39 App.D.C. 571, 576; Eagles v. United States, 58 App.D.C. 122, 124, 25 F.2d 546; Fall v. United States, 60 App.D.C. 124, 130, 49 F.2d 506; and Miller v. United States, 93 U.S.App.D.C. 76, 207 F.2d 33.
Fall v. United States, supra, is of particular interest. The defendant, a Government officer, was convicted of bribery. The Court of Appeals sustained the action of the trial judge in admitting evidence that the accused had participated in another similar transaction as bearing upon his motive or intent.
In numerous prosecutions for abortion, evidence that the defendant had committed other similar offenses, has been admitted: People v. Morani, 196 Cal. 154, 157-159, 236 P. 135; Max v. People, 78 Colo. 178, 180, 240 P. 697; State v. Brown, 3 Boyce 499, 26 Del. 499, 504, 85 A. 797; State v. Doty, 167 Minn. 164, 208 N.W. 760; Rice v. State, 120 Neb. 641, 645, 234 N.W. 566; State v. Brandenburg, 137 N.J.L. 124, 126, 58 A.2d 709; State v. Sturchio, 130 N.J.L. 259, 32 A.2d 577; Miller v. State, 189 Tenn. 281, 287, 225 S.W.2d 62, 15 A.L.R.2d 1076.
In State v. Brown, supra, 26 Del. at page 507, 85 A. at page 801, it was stated that:
'Abortion, or the attempt to procure miscarriage, are offenses in the trial of which evidence of similar acts has been generally admitted.'
In Miller v. State, supra, 189 Tenn. at page 287, 225 S.W.2d at page 64, it was said:
'Where a felonious intent is an essential element of the crime, as it is in an attempt to procure an abortion, and the accused claims that his acts were lawful and innocent, it is competent for the prosecution to rebut the testimony of the accused by evidence of other criminal acts of his where he used the same or similar means to bring about the same result.'
In the light of the foregoing discussion, the court is of the opinion that the evidence here in question was properly admitted.
One other point merits brief mention. The defendant urges that the court erred in excluding evidence that the complaining witness was not in fact pregnant. Actually, however, the court did not exclude any such evidence, because none was tendered. The court indicated that in the light of Peckham v. United States, 93 U.S.App.D.C. 136, 210 F.2d 693, the Government did not have the burden of proving beyond a reasonable doubt that the complaining witness was in fact pregnant. The defendant, however, did not offer proof to the contrary. He sought merely to introduce opinion evidence to the effect that the symptoms described by the complaining witness to the defendant did not conclusively indicate that she was pregnant. This testimony was excluded as irrelevant and incompetent. The entire issue, however, is academic because the Government offered proof through the complaining witness, as well as by hospital records, that she in fact had a miscarriage, which obviously could not have occurred if she had not been pregnant. No evidence to the contrary was adduced in the defendant's behalf. Moreover, the defendant himself testified that he examined and treated the complaining witness; that she was bleeding and he feared that she would lose her baby; and that he injected medicine into her body, not for the purpose of producing a miscarriage, but with a view to preventing one.
The evidence of guilt was overwhelming and fully sustains the verdict. No valid reason is perceived for setting it aside.
Motion for a new trial is denied.
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