Page:The Law and the Doctor Vol 2 - The Physician as Witness.djvu/21

Rh Friday before the Saturday on which the operation was alleged to have been performed, in which conversations deceased stated that she had found out that she was in a family way; that she had been to see defendant about it; had been or was going to defendant to get some medicine or a syringe, and that she had made arrangements to have an operation performed on her by defendant, for which she was to pay twenty-five dollars; that she was going on Saturday to have instruments used to get rid of the child. All of this was held to be proper evidence, being part of the res gestæ.

Where the question in issue is whether a certain act was done, any fact is relevant which shows motive for such act, or which shows a state of preparation or a mental attitude predisposed thereto. It accordingly is relevant to show, in case of a criminal prosecution for the procurement of an abortion, that defendant is possessed of an extraordinary number and variety of instruments for the producing of abortions; also that he has issued circulars calculated to show that he is prepared to procure abortions.

It is also relevant, for the purpose of establishing a certain act, to show subsequent conduct of the person apparently influenced by the doing of that act, and any statements made in his presence and hearing by which his conduct is likely to have been affected; also to show any act done by the person in consequence of such act. Under this rule it would be permissible to introduce evidence of defendant's manner and conduct when arrested, also comments made upon such conduct by third persons in his presence and hearing; any facts showing the relation or which offered an opportunity for the performance of the act in question. Accordingly, it is relevant to the question of whether defendant poisoned deceased, to show that defendant knew the habits of deceased, which afforded him an opportunity to administer the poison.

Facts unconnected with the fact in issue, though so similar to it as to render the fact in issue probable, are not generally admissible, although, as heretofore shown, such facts are sometimes relevant, as, when showing a state of preparation or of willingness to perform the act in question. Such facts are also relevant if they