State of Oregon v. Dewey , 206 Or. 496 ( 1956 )

LUSK, J.

The appellants, Dr. H. R. Dewey, Doris Hofstra (spelled Hoffstra in the indictment) and Johanna Eizema, and others, were jointly indicted of the crime of “committing on act grossly disturbing the public peace and health, openly outraging public decency and injurious to public morals,” alleged to have been committed as follows:

“The said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, on the 30th day of April, A. D. 1951, in the County of Multnomah and State of Oregon, then and there being and then and there unlawfully conspiring, confederating and agreeing with each other thereto, did on the said day in the said county and state, wilfully and wrongfully set up, equip, furnish with apparatus, and thence continuously until the 26th day of June, 1951, and ever since said time, keep and maintain a certain public place, known as the Dewey Clinic, in the Alisky Building, in the City of Portland, said county and state, with the intent and purpose of them, the said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, of wilfully, wrongfully and unlawfully committing, producing and procuring abortions in said public place, upon women pregnant with child, and so having set up, furnish, equipped, kept and maintained said public place with the intent and for the purpose aforesaid, the said Dr. H. R. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, did on the 25th day of June, 1951, in the said public place known as the Dewey Clinic in said county and state, wilfully and wrongfully commit and produce an abortion upon one Ila Cowles, she, the said Ila Cowles, then and there being a woman pregnant with child, and did then and there between the 30th day of April, 1951 and the 26th day of June, 1951, and ever since said time, wilfully and wrongfully commit and produce upon women then and there pregnant with child, the names and numbers of which women are to the Grand Jury unknown, abortions contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”

The indictment charges a violation of ORS 161.310, generally known as the “Nuisance Statute.” State v. Nease, 46 Or 433, 440, 80 P 897.

The defendants first hereinabove named were convicted as charged and have appealed from the consequent sentence.

The questions raised by the defendants’ first contention, vis., that the indictment does not state facts sufficent to constitute a crime, because the statue under which the prosecution was brought is void for vagueness and because the indictment charges acts for which punishment is expressly provided by the Code, are set at rest by our recent decision in State v. Elliott, 206 Or 82, 277 P2d 754 (rendered after the briefs in the present case were filed), which reaffirmed the doctrine of State v. Atwood, 54 Or 526, 102 P 295, 104 P 195. Because of the decision in the Elliott case learned counsel for defendants waived the contention at the oral argument.

As a second assignment of error the defendants assert that the court committed reversible error in overruling defendants’ objections to the admission of certain testimony which it is claimed was incompetent under the rules of res judicata or estoppel by judgment. One of the acts charged in the indictment was that on June 25,1951, the defendants did “wilfully and wrongfully commit and produce an abortion upon one Ila Cowles, she, the said Ila Cowles, then and there being a woman pregnant with child.” Ila Cowles was called as a witness by the state. Before she testified the prosecuting attorney informed the court that the defendant, Dr. H. R. Dewey, along with the defendants, Doris Hofstra and Johanna Eizema, had been indicted for the crime of manslaughter by abortion performed upon Ila Cowles and that Dewey had been separately tried on the charge and acquitted. At a later point in the trial the record in that case was received in evidence. It showed that the indictment was returned July 6, 1951, and a judgment of acquittal of the defendant, Dr. H. E. Dewey, entered December 17, 1951. The indictment in the case now under consideration was also returned July 6, 1951, but the trial was not commenced until June 1, 1953.

After having advised the court of this situation, the prosecuting attorney stated that the purpose of the testimony to be given by Ila Cowles was to show arrangements made with the defendants in connection with their business of performing unlawful abortions. Over appropriate objections of counsel for the defendants the court permitted the witness to testify to the following effect: She stated that her home was in Eugene, that she was a married woman with two children, and that on June 25, 1951, she was pregnant with child and in good health, and on that day went to the Dewey Clinic (the name under which the defendant, Dr. H. E. Dewey, operated) to have an abortion. She saw the defendant, Doris Hofstra, in the office and showed her a slip of paper, whereupon Doris Hofstra said:

“Oh, yes, there isn’t anything to it. We give abortions all the time. We’re the only ones that give it with an anesthetic. There is nothing to it. We do it all the time for girls from California and they go home in about four hours.”

Acting under the instructions of the defendant, Doris Hofstra, the witness, Ila Cowles, put on a hospital gown and waited for about an hour in a small room in the defendants’ suite. The defendant, Dr. H. E. Dewey, finally came and made a pelvic examination and told her she was three months pregnant. She said that she was only two months pregnant. After that Mrs. Hofstra told her that the charge would be $310.00, but the witness said that she did not have that much money, and Mrs. Hofstra then came down in her price to $210.00. The witness said that she wonld have to see her mother-in-law, who had accompanied her to Portland from Engene and was waiting for her in the automobile. Mrs. Hofstra said that there would be a charge of $10.00 for the examination. The witness paid this amount, sought out her mother-in-law, and, finding that between the two of them they had $180.00, they both went to the Dewey Clinic with the money, paid it to Dr. Kenneth E. Dewey (one of the defendants), and, at his demand, delivered to him her wrist watch to secure payment of the remaining $30.00. Dr. Kenneth E. Dewey also required the witness and her mother-in-law to sign a printed form concerning which he said, “You know, this is outside of the law, and you have to sign this to protect us if anything should happen.” The witness did not know what the words on the printed form were. Thereupon, the witness, acting under Dr. Kenneth E. Dewey’s instructions, went into the same little room and put on a hospital gown, and was told to lie down and sleep if she could. The witness further testified that on a second visit to the Dewey Clinic she saw several little rooms with cots in them and another room in which there was an operating table with stirrups on the side that you could raise and lower. She testified that When Dr. H. R. Dewey made the pelvic examination he had tools like a doctor. This is as far as the testimony of the witness, Ila Cowles, went concerning her experience with the Dewey Clinic.

Mrs. Clara Brown, the mother-in-law of Ila Cowles, corroborated the latter insofar as she had first-hand knowledge of the facts to which Ila Cowles testified.

Additional evidence relating to this issue was given by Donald Arthur Cowles, husband of Ila, and Bobert Vernon Mollett, a former police officer. They both testified to a conversation in the former’s home on July 2,1951, between Cowles and the defendants, Doris Hofstra and Johanna Eizema, and which was overheard by Mollett, who was listening in another room to which the voices were carried by means of a microphone that had been installed for that purpose. According to this testimony the named defendants said they were nurses for Dr. Dewey. Cowles testified:

“They said, ‘you know the type of business we do. It is over the grapevine. And the irony of it all is that we do policemen and court house wives and district attorney’s office.’ ”

Mollett testified that he heard the defendant, Johanna Eizema, make this statement:

“Well, she mentioned that he had probably heard of the type of thing they did by the grapevine and she didn’t actually name it by name except at one point she did mention there was a great deal of commotion in Portland and that the irony of the whole thing was that they did, they had as patients the wives of police officers and people from the court house at Portland for the same sort of thing.”

The prosecuting attorney stipulated that the foregoing testimony of Ila Cowles, Mrs. Clara Brown, Donald Arthur Cowles and Mollett was in substance given by them in the trial of the defendant, Dr. H. R. Dewey, for manslaughter by abortion.

Although the inadmissibility of the foregoing evidence is urged on behalf of all the defendants, the objection can in no event be available to any of them other than Dr. H. R. Dewey, for he alone was acquitted of the charge of manslaughter by abortion.

The argument of counsel for the defendants proceeds upon the erroneous assumption that every fact directly in issue in the former prosecution was necessarily determined by the verdict of acquittal. That this is not the law either in Oregon or elsewhere we think can readily be demonstrated.

The parties are agreed that the doctrine of res judicata or estoppel by judgment is applicable in criminal cases. See 2 Freeman on Judgments (5th ed) 1364 § 648; United States v. Oppenheirmer, 242 US 85, 61 L ed 161, 37 S Ct 68, 3 ALR 516; State v. Erwin, 101 Utah 365, 120 P2d 285; annotation 147 ALB 992. In this state it is so declared by statute. OBS 43-160 provides:

“That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.”

The foregoing provision, enacted in 1862, has always been a part of the Code of Evidence of this state. See Deady’s General Laws of Oregon, p 315, and § 726. The section is made applicable to criminal cases by OBS 136.510, which reads:

‘ ‘ The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in the statutes relating to crimes and criminal procedure.”

In its consideration of the subject this court, like others, has uniformly made a distinction between eases in which the second action is upon the same claim or demand as the first, and those in which it is upon a different claim or demand. In the former case the judgment, if upon the merits, is an absolute bar and concludes the parties and their privies not only as to every matter that was actually litigated but as to any other matter that might have been litigated. But in the latter case it is essential that the issue in the second action was a material issue in the first and necessarily determined therein. Beezley v. City of Astoria, 126 Or 177, 188-190, 269 P 216, 60 ALR 504. As we said in State v. Vincent, 152 Or 205, 212, 52 P2d 203, “the judgment in the superior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered.” See, also, Farmers & Fruit Growers’ Bank v. Davis, 93 Or 655, 665, 666, 184 P 275; Roots v. Boring Junction Lum. Co., 50 Or 298, 92 P 811, 94 P 182; Heilner v. Smith, 49 Or 14, 88 P 299; La Follett v. Mitchell, 42 Or 465, 471, 472, 69 P 916, 95 Am St Rep 780.

In the Beezley case we quoted with approval the following statement of the rule by Mr. Justice Field in Russell v. Place, 94 US 606, 24 L ed 214:

“It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,—the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.”

See, also, Packet Co. v. Sickles, 72 US 580, 592, 18 L ed 550; Cromwell v. Sac County, 94 US 351, 24 L ed 195.

Our most recent decision is Wagner v. Savage, 195 Or 128, 244 P2d 161, where the question was whether a decree for the defendant, in a suit for the specific performance of an oral agreement to convey to the plaintiff defendant’s property upon his death, operated as an estoppel in a subsequent action of assumpsit to recover the reasonable value of the same services which in the first suit the plaintiff had alleged constituted the consideration for the oral agreement. As there were no findings in the suit for specific performance and the decree merely recited that the equities were with the defendants and against the plaintiff and dismissed the suit with prejudice; and, as the second case involved a different claim or demand from the first, and there was, therefore, no way of determining upon which of the several issues made by the pleadings the court had based its decree, we held that the plea of res judicata was not sustained.

Counsel for the defendants relies upon Ruckman v. Union Railway Co., 45 Or 578, 581, 78 P 748, 69 LRA 480; the Wagner case; and Winters v. Bisaillon, 153 Or 509, 513, 514, 57 P2d 1095, 104 ALR 968, in all of which language is used to the effect that, where the second action is upon another claim or demand from the first, “the former judgment is not a bar, except as to questions actually determined or directly in issue.” The same language may be found in other of our decisions. See Runnells v. Leffel, 105 Or 346, 361, 207 P 867.

The contention seems to be that, even though the second action involves a different claim or demand from the first, all matters put in issue by the pleading must be conclusively deemed to have been determined whether or not there is anything to show that they were either actually or necessarily determined. The decisions, however, do not bear out this theory. The Wagner case, for example, could not have been decided as it was were counsel’s contention sound, because there one of the facts in issue was the rendition of the services to recover the value of which the second action was brought. Yet we held from an examination of the record before us that that issue had not been necessarily determined in the first suit. Although in Winters v. Bisaillon the judgment in the first action was held to be available as an estoppel in the second, the decision was not based upon any such view of the doctrine of res judicata as is contended for by the defendants. The case arose out of a collision between an ambulance driven by Winters and an automobile driven by Bisaillon. Winters sued first to recover for personal injury, and a jury trial resulted in a verdict for the defendant. He then sought in another action to recover damages for injury to his ambulance and was met with a plea of estoppel by judgment. The plea was sustained because of the particular circumstances that in the first case neither the injury nor the fact that it was proximately caused by the collision was in dispute; in the second case, therefore, it was held that the verdict of the jury necessarily determined either that the defendant was not negligent or that the plaintiff was guilty of contributory negligence. And, since the plaintiff could not recover in the second action unless both of these issues, involving as they did the same accident, were decided in his favor, he was estopped to maintain the action. The governing principle was quoted from 2 Freeman on Judgments (5th ed) 1465 §693 as follows:

“Matters which follow by necessary and inevitable inference from an adjudication because the judgment could not have been rendered without determining them are as effectually concluded thereby as though specifically and in terms adjudicated.”

The rule is no different in criminal cases. Where the second prosecution is for another offense, “the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. Thus an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.” 2 Freeman on Judgments (5th ed) 1365 § 648. See, also, Dangel, Criminal Law 351; Harris v. State, 193 Ga 109, 17 SE2d 573, 147 ALR 980; State v. Barton, 5 Wash2d 234, 105 P2d 63; Sealfon v. United States, 332 US 575, 92 L ed 180, 68 S Ct 237; United States v. Meyerson, 24 F2d 855; United States v. Morse, 24 F2d 1001; State v. Erwin, 101 Utah 365, 120 P2d 285; Bell v. State, 57 Md 108; State v. Coblentz, 169 Md 159, 180 A 266.

United States v. Meyerson and United States v. Sealfon, both supra, afford illustrations of the application of the rule. In the former case a defendant named Katz had been acquitted of the charge of using the mails for the purpose of executing a scheme to defraud. He was thereafter prosecuted under an indictment for conspiracy to violate a section of the National Bankruptcy Act, the charge involving the same fraud as that alleged in the first indictment. On motion to quash the court held that the acquittal of Katz on the first charge was a bar to the second prosecution. This was determined, however, not from a bare inspection of the two indictments and the verdict of acquittal in the first case, but from an examination of the record of the trial in that case, which included a ruling of the court directing a verdict of acquittal upon a ground which conclusively determined that Katz could not have been a party to the conspiracy alleged in the second indictment. Similarly, in the Sealfon case the defendant, Sealfon, was acquitted upon an indictment charging conspiracy to defraud the United States, but was afterwards convicted of the substantive offense involved in the first indictment. The conviction was set aside by the Supreme Court. The court, in an opinion by Mr. Justice Douglas, said that the substantive offense and a conspiracy to commit it are separate and distinct offenses, and that res judicata “operates to conclude those matters in issue which the verdict determined though the offenses be different.” Whether “the jury’s verdict in the conspiracy trial was a determination favorable to petitioner of the facts essential to conviction of the substantive offense” depended upon “the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial”. From an examination of these matters, and in particular of the only instruction given on the first trial “keyed to the particular facts of the case”, the court found that the verdict of acquittal necessarily determined that the defendant did not enter into an agreement with another defendant to write a certain letter, which agreement was “the core” of the prosecution’s case in each case.

On the other hand, in State v. Barton, supra, where the defendant was at first acquitted of the crime of murder in the first degree committed in the course of a robbery and later was indicted for the same robbery and found guilty, the court held that the judgment of not guilty in the first case did not operate as an estoppel in the second, notwithstanding the defendant’s contention that the first verdict was based on defendant’s defense of alibi, and, therefore, as it was claimed, conclusively determined that he was not present and could not have participated in the robbery. The court said:

“In the murder prosecution the appellant’s defense of alibi and the various related matters of fact set out in detail in his amended special plea were not actually or necessarily adjudicated, nor can it be said that the issues were limited, as appellant contends. Every material allegation of the information was placed in issue by the appellant’s plea of not guilty, and the state had the burden of proof beyond reasonable doubt. It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant’s alibi, or for the reason that they found the state’s evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata as to appellant’s alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused.”

Under a similar state of facts a different result was reached by the Georgia court in Harris v. State, supra. "Which of these decisions is to be preferred is a matter of no importance at the moment; they both stand for the principle which we have heretofore stated and which is recognized by all the text writers on the subject and the great majority of the decisions. Apparently opposed to the general rule are United States v. Clavin, 272 Fed 985, and United States v. Rachmil, 270 Fed 869, both of which hold that an acquittal upon an indictment for conspiracy is a bar to a subsequent prosecution for commission of the substantive offense which was the object of the conspiracy. As stated in United States v. Holbrook, 36 F Supp 345, these decisions are ‘ ‘ out of line with the majority of the cases. ’ ’ See Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Ia L Rev 317, 337.

The present indictment is for a different offense than that charged in the indictment in the first case. It alleges as an incident of the nuisance that the defendants wrongfully committed and produced an abortion upon Ila Cowles, she being a woman pregnant with child. The court permitted the state to introduce evidence of arrangements made by Ila Cowles with the defendants for an abortion, of circumstances indicative, perhaps, of such arrangements, and of the fact that Ila Cowles was at the time a pregnant woman. The elements of the crime of manslaughter by abortion, of which the defendant, Dr. H. R. Dewey, was acquitted, are (1) administering to a woman pregnant with child of any medicine, drug or other substance, or the use of an instrument or other means, with intent thereby to destroy such child; (2) unless the same is necessary to preserve the life of the mother; (3) the death of the child or the mother. ORS 163.060. The indictment followed the language of the statute, and the burden was upon the state to prove beyond a reasonable doubt all its essential allegations. Failure so to prove any one of them would authorize a verdict of not guilty. We have before us no part of the record in the former case pertinent to the question under consideration, except the indictment, the plea of not guilty, and the verdict. Our only knowledge concerning the testimony given on the trial of that case comes from the stipulation of the district attorney, to which we have referred, that the testimony of four witnesses, heretofore summarized, was in substance given on the other trial. The instructions are not here. It is, therefore, impossible to say upon what ground the verdict of acquittal was based, or whether the state failed to prove one or all of the essential elements of the crime. There being no extrinsic evidence to aid in a determination of the question, “the whole subject-matter of the action” is, as Mr. Justice Field said in Russell v. Place, supra, “at large” and “open to a new contention.” The verdict, therefore, was not a conclusive determination of the facts in question and the evidence objected to was properly admitted.

The defendants further contend that they were entitled to a directed verdict of acquittal for the reason that the acts alleged were not “openly done,” but rather in the privacy of a physician’s office. This question likewise is foreclosed by the decisions in the Elliott and Atwood cases. In the former we quoted with approval the following from the Atwood case:

“* # * They do openly outrage public decency, and are injurious to public morals, and such is the effect of the acts charged, even though not done in a public place, or in view of the public. ’ ’

The evidence in the case at bar shows that the fame of the Dewey Clinic had spread as far as California and had attracted customers from that state. Its notoriety was such as to engage the attention of Susan Oester, an investigator for the district attorney for Multnomah County; of Miss Maris Patricia Lillie, a police officer; and Rolla Crick, a reporter for the Oregon Journal. The first two visited the Dewey Clinic for the purpose of obtaining evidence. They represented themselves as pregnant, and pretended to desire abortions and made arrangements to that end. Their testimony was in substance much like that o.f Ila Cowles. The witness, Eolia Crick, represented to the defendant, Dr. Kenneth E. Dewey, that he “had a girl friend in trouble, that we couldn’t have a baby at this time,” and, after obtaining information about the method of the proposed operation and its cost, agreed to bring her to the clinic on the day appointed for the purpose of having an abortion. As previously stated, there was no contradiction of any of the state’s evidence. It is impossible to read the testimony without reaching the conclusion that the defendants were engaged in operating a full-scale “abortion mill”, which constituted an open affront to public decency within the meaning of the statute and our decisions. See People v. Hoffman, 103 NYS 1000, aff. 189 NY 561, 82 NE 1130.

It is argued, however, that the state failed to prove the corpus delicti because there is no evidence that the defendants committed an abortion upon any woman pregnant with child.

The statute under which the defendants are prosecuted is OES 161.310 and reads:

“If no punishment is expressly prescribed for the act by the criminal statutes, any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, upon conviction, shall be punished by imprisonment in the county jail for not less than one month nor more than six months, or by fine not less than $50 nor more than $200.”

The indictment in State v. Elliott, supra, was in identical language with the indictment here save for necessary changes in names, dates and places, and we there said that “the gravamen of the charge in the indictment is unlawfully keeping and maintaining a public place for the purpose of producing illegal abortions, which act grossly disturbed the public peace and health and openly outraged public decency, being injurious to public morals. The allegations in the indictment respecting conspiracy, abortions, etc., were merely elements, incidents, means or circumstances by which the substantive crime was committed and not the substantive crime itself.”

As the court said in People v. Hoffman, supra, “The offense of abortion is one thing. That of maintaining premises open to the public for the purpose of consummating that crime is another and separate offense against the peace and good order of the state.”

If, however, it was necessary for the state to prove that abortions were actually committed at the Dewey Clinic, there is ample evidence from which this fact could be inferred. People v. Curtis, 136 NYS 582, aff. 206 NY 747, 100 NE 1131, was an indictment for the offense of committing and maintaining a public nuisance by keeping and maintaining a building for the unlawful purpose of committing and performing therein unlawful abortions, and charging that such abortions were performed therein. Testimony of a police officer similar to that of the witness, Eolia Crick, in this case and of two women acting as detectives similar to that of Mrs. Oester and Miss Lillie, was held, correctly as we think, to make it “a question of fact as to whether it was not actually a place where operations were performed and persons harbored as charged in the indictment. ’ ’

It was not necessary to prove the allegation of the indictment that the defendants performed an abortion on Ila Cowles. If, as has been suggested, that allegation constituted an essential element in the description of the particular nuisance charged, without proof of which the offense of setting np and maintaining a nuisance was not made out, then, by a parity of reasoning, if the indictment had alleged that abortions were performed on 10 or 100 pregnant women, naming them, failure to prove any one or more of such charges would have been fatal to the state’s case. "We are not persuaded that this is the law.

In State v. Atwood, supra, which is cited as a contrary decision, the only question was whether the indictment stated facts sufficient to constitute a crime. 54 Or at p 529. There was no question of sufficiency of the proof. The indictment was similar to the one in the present case, and the defendant contended that it was insufficient for the reason, among others, that it did not allege facts showing that any unlawful abortions were committed. The court rejected this contention, saying:

“The charge is that the house was maintained with the intent and purpose of willfully, wrongfully and unlawfully producing abortions. It was not the purpose of the indictment to charge that the intention of the defendants was to commit the crime of killing by producing abortions under Section 1748, B. & C. Comp., but that they were conducting a business that openly outraged the public decency and was injurious to public morals, and the business with which the defendants are charged clearly comes within those terms.” 54 Or at pp 535, 536.

The court further said: The court concluded that the acts charged against the defendants constituted a nuisance per se. The court was not called upon to decide whether a failure to prove the specific abortion alleged would amount to a failure of proof even though there was substantial evidence that abortions were actually performed by the defendants in the place described and that the house was maintained for that purpose. No such question was presented. The decision, therefore, is not a controlling precedent here.

“The allegations of abortion upon Mahala Roberts and other women do not state facts that constitute a crime under Section 1748, B. & C. Comp., and are not intended to, but are only allegations of acts done in the performance of the purpose and intent charged, which are necessary elements of the nuisances and do not charge separate offense: State v. Waymire, 52 Or. 281 (97 Pac. 46).”

In State v. Waymire, cited in the Atwood case, the nuisance consisted in the acts of the two defendants, a man and a woman, which were designed to accomplish their purpose of exposing the mayor of the city of Portland to public disgrace as one seemingly engaged in an attempt to ravish the woman defendant. The woman defendant was to make a loud outcry and the man, who was lying in wait, would then break and shatter the door of the office in which the supposed crime was being attempted, thus attracting a “concourse of the citizens.” The defendants had each their separate parts to play in carrying out their conspiracy, and the combined acts of both were essential in order to produce the intended result. But in this respect the case at bar is entirely different, and, had there been no evidence at all about Ila Cowles, there still would have been sufficient evidence of the offense charged.

The question here is not governed by the rule that where the indictment is for an offense which is local in its nature, such as larceny in a building, or burglary, or maintaining a liquor nuisance, the allegation as to the place is a necessary part of the description of the offense and must be proved as laid. 2 Wharton, Criminal Evidence (11th ed) 1862 § 1062. An illustrative case is Dennis v. State, 91 Ind 291, where the charge was maintaining a public nuisance, to-wit, a slaughterhouse, “near the residence of Josephy Loehr, Noble Warrum and Rufus Scott,” it being alleged that the smells from the slaughter-house, etc., were offensive to the named individuals and others. The phrase quoted was regarded by the court “as matter of description, and although it was alleged unnecessarily, and was not a material averment in the affidavit and information, yet, having been alleged, it must be proved, under the decisions of this court, precisely as charged, and a variance will be fatal.” Therefore it was held that an instruction which, in referring to the location of the slaughter-house, omitted the name of one of the three individuals mentioned in the phrase we have quoted was erroneous. Fulk v. State, 19 Ind 356, is a simliar decision. Both cases involve application of the rule that “Where there is an allegation which describes, defines, qualifies, or limits a matter to be charged, it is taken as a descriptive averment, and the general rule obtains that it must be proved as laid, even though such particularity of description is unnecessary.” 2 Wharton, op. eit., 1911 §1090. Among other cases cited by the author are several where money alleged to have been stolen was unnecessarily described as “money of the U.S.”, and, the proof failing in this particular, the conviction was reversed. See p. 1912, note 17. A similar question was involved in State v. Neilon, 43 Or 168, 174, 73 P 321, though the court found it unnecessary to decide it.

Upon this subject of surplusage in the indictment Mr. Bishop says:

“If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other. Thus,—

“A needless adjective, prefixed to an essential noun, being descriptive of what cannot be rejected, must be proved also; as, if the indictment is for malicious mischief to ‘white-oak’ trees, or for larceny of a horse described by its sex or color or brand, these particulars of the things, wholly ununecessary to be stated, must be proved, or the variance will be fatal.” 2 Bishop’s New Criminal Procedure (2d ed) p. 401.

We are not concerned in this case with any question of identification of place or object. The nuisance consisted of setting up and maintaining a place, specifically designated, together with the necessary equipment, for the performing of abortions and the actual performing of abortions in that place. All these things were amply proved.

There are numerous classes of cases in which it is held that failure to prove all that is alleged in the indictment will not stand in the way of a conviction. Of these may be mentioned prosecutions charging a conspiracy, in which it is not necessary to prove all the overt acts alleged (Short v. United States, 91 F2d 614, 112 ALR. 969); indictments for contributing to the delinquency of a minor in which it is sufficient to prove one or more of the acts of misconduct alleged (State v. Moore, 194 Or 232, 240, 241 P2d 455); and prosecutions for obtaining money or property by false pretenses in which proof of the falsity of one or more of the pretenses alleged is all that is required (22 Am Jur 500, False Pretenses § 99).

It is argued in effect that cases of this kind are not pertinent to a prosecution under the nuisance statute where the grand jury or the district attorney defines the crime by the indictment or complaint. But only the legislature has the power to define a crime. The statute under which this prosecution was brought “was intended by its language to cover offenses against the public peace, the public health, and the public morals, not elsewhere made punishable by the Code, and which were known at common law as ‘indictable nuisances.’ ” State v. Waymire, supra, 52 Or at p 285; and “We are, therefore, required to resort to the common law to ascertain what act ‘grossly outrages public decency and is contrary to good morals,’ as applied to criminal prosecutions.” Id. The indictment states the charge, but the court, as the Waymire case sufficiently shows, determines whether the facts alleged constitute a crime as defined by the legislature.

It cannot be said that without the allegation of an abortion on Ila Cowles the grand jury would not have found the defendants’ activities to be a violation of the statute. A contention of that kind was considered by the court and rejected in People v. Haynes, 11 Wend (NY) 557. The indictment was for obtaining property by false pretenses, and defendant argued that proof of all the pretenses alleged was essential to support a conviction, for the reason that “the indictment shows that the grand jury found the goods were trusted upon the faith of all the false pretenses set forth, and that without the existence and falsehood of all, we must presume it would not have been found; and to permit a conviction upon proof only of a part of them, would be a conviction of an offense different from the •one contained in the indictment.” Answering this contention the court said:

“* * * These reasons were urged against the position that part of the false pretenses need only be proved, if sufficient in themselves to convict. If all were material to constitute the offence charged, the argument would be sound, and it would follow that all should be proved, else a conviction would be unjust; but the position that part need only be proved, assumes that they may and must be suffieient in law to bring the case witbin the statute; and then I am unable to discover how it is possible injustice can be done to the prisoner if convicted.

“We all know that in indictments as in declarations, not only many counts are often added embracing the same offence, and that two or more distinct offences are sometimes set forth in the same count, from abundant caution; but the proof of one always authorizes the conviction. So in this case. We can perceive no objection to the grand jury setting out any number of false pretences, of which there may be any evidence before them for greater caution, negativing each specifically; and if it should turn out on the traverse, that there were more laid than were true, or material to establish the offence, they may be rejected as surplusage, and .need not be proved. The result would not show that the prisoner was convicted of an offence, different from the one charged by the grand jury, but that the grand jury had found in the indictment more matter than was essential to constitute the offence. The prisoner would have notice of the offence charged against him, and something more.”

So it was said in People v. Townsend, 3 Hill (NY) 479, where the indictment was for erecting and maintaining a dam which caused animal and vegetable substances to accumulate in large quantities in the pond made by the dam, corrupting the water and making it noxious and offensive: “It is not always necessary to prove every averment contained in the indictment, and if the prosecutor had stated twenty different ways in which the dam became a nuisance, it would have been sufficient to prove that the injury arose in any one of those ways.”

In State v. Beal, 94 Me 520, the indictment was for erecting and maintaining a nuisance, to-wit, a certain piazza which obstructed a public highway. The indictment described the piazza with particularity by metes and bounds. The evidence showed, however, that part of the piazza was without the street and part within, and the defendant contended that as the indictment alleged that the whole piazza was a nuisance there was a fatal variance between allegation and proof. This contention was rejected. The court recognized the rule “that when a person or thing necessary to be mentioned in an indictment is described with even unnecessary particularity, all the circumstances of the description must be proved; for they are all made essential to the indentity, 1 G-reenleaf on Evidence, § 65; and a variance in proof of particulars is fatal, for proof of identity may depend upon preciseness of description.” The court continued:

“ * * * But in this case no complaint is made either in exceptions or argument that a piazza with the particulars described was not proved with sufficent particularity; but the complaint is that all of the piazza so described and proved was not within the street. And this raises another, and, we think, a different question, and that is, does the failure to prove the allegation of an offense to the extent charged result in a fatal variance between allegation and proof. We think not necessarily. It is laid down by Mr. Wharton in his work on Criminal Evidence, § 145, that failure to prove allegations of number, quantity and magnitude in their entirety is not a fatal variance, where the proof pro tanto supports the charge. And we think this case falls within the principle of that rule. The piazza in this case was charged to be wholly a nuisance, to the limits of the description, and the state sought to prove that fact. If the state failed to prove it to the full extent, it is not the less true, as admitted in argument, that the piazza in parts was a nuisance. If one were charged with creating a nuisance by placing a log twenty feet long in the street, would it be reasonable to hold that the prosecution must fail if it should appear that six inches of one end of it extended beyond the street line? We think it would not. And what would be true of a log is true of a piazza. The law requires no such nicety even in criminal pleading. By so holding, no right of the defendant is jeopardized. His defense is not thereby made more difficult or uncertain.”

We think that the foregoing is ample authority for our decision. In effect, the court held that, although the prosecution had charged a more extensive nuisance than it proved, still, if what it proved constituted a nuisance, that was sufficient. It cannot be questioned that what was proved in this case constituted a nuisance, without proof of the abortion on Ila Cowles.

The allegations of the indictment respecting abortions do not fall within the rule that unnecessary descriptive averments must be proved, but, as was said in the Elliott case, are “merely elements, incidents, means or circumstances by which the substantive crime was committed.”

We conclude that where it is established by competent evidence, as it was in this case, that the defendants set up and maintained a place and the necessary equipment for the purpose of performing illegal abortions upon pregnant women, and there is evidence from which it could be found that such abortions were actually performed, the objection that the nuisance has not been proven as charged, because of the failure to prove a particular abortion alleged, is without substance.

Other arguments in the defendants’ brief in support of their claim that there was no proof of the corpus deliciti are so clearly lacking in merit that they do not call for discussion.

There is no error in the record and the judgment is affirmed.