People v. Hager

The defendant, a physician, was convicted of k violation of section 1142 of the Penal Law. Even with disregard of the defendant’s proof so far as it is contradictory or contrary to the proof of the People, I think that he could not have been convicted of selling or giving away a drug and medicine for causing unlawful abortion or purporting to be for1 causing unlawful abortion. He gave a prescription and furnished certain pills. The prescription appears to be nothing more than a formula for nausea. Chemical analysis of the pills detected but one substance in a quantity sufficient for identification, namely, an unstated quantity of aloin, which is an active cathartic, a purgative glucosid, made from aloes. (Cent. Dict.; Dorland’s Am. Illus. Dict. of Medicine [8th ed.].) There is no proof that the pills in the dose recommended would be an. abortifaeient for the woman in the condition represented by her. There is no proof that the pills purported to be “ for causing unlawful abortion,” a phrase that means they imported to be for that purpose, as, e. g., by inscription upon the bos or bottle that contained them.

But this statute also prohibits holding out representations that the drug or medicine “ can he so used or applied, or any such description as will be calculated to lead another to so use or apply,” etc. The information, which is to be regarded as an indictment, specifies such doings by the defendant, and was, therefore, sufficient to sustain a conviction upon this part of the said statute. (Bork v. People, 91 N. Y. 5 ; People v. Corbalis, 86 App. Div. 531 , 17 N. Y. Crim. 469 .)

The two witnesses for the People were detectives who were decoys. But they were not within the category of private detectives, but were members of the police force assigned to a special squad, and acted presumably in discharge of prescribed official

I advise that the judgment be affirmed.

I dissent. The medicine which the doctor gave was entirely harmless; and it is proposed to uphold the conviction on the ground that he represented that it would produce an abortion. There is no direct evidence of any such representation; it is spelled out of the evidence of the complaint of the woman and the prescription: of the physician. Both- witnesses for the People were police detectives, engaged in an attempt to decoy the defendant into the commission of a crime — an immoral act in itself, and carried out by falsehood. In some respecte their evidence was highly improbable, as where one testified that she heard the conversation through the closed door of the examination room although she did not listen at the door. It is suggested that she might have fabricated a situation which would make her evidence more believable, if she had testified that she did listen at the door; but we must recognize a natural aversion to confess to eavesdropping. Every circumstance tended strongly to show the innocence of the defendant; the fee was two dollars, usual for innocent consultation, although the witnesses testified that she suggested ten dollars and the doctor asked twenty-five; the medicine itself was harmless, and the reputation of the defendant was of the best.

Detective work in obtaining by legal methods evidence of crime is necessary, and the vocation should be held in proper esteem. But it is neither necessary nor honorable to induce the commission of a crime, whether the procurer is paid by the public or by private parties. In both cases the- witnesses are under a temptation to make good. In the case of private « detectives, the courts consistently refuse to grant divorces without corroborating evidence. The courts- established the rule that convictions by accomplices could not be had without other evidence tending to connect the defendant with the com

Stapleton, J., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.