Appendix — Mucie v. Missouri

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IN THE

SUPREME COURT OF MISSOURI

DIVISION NUMBER ONE

STATE OF MISSOURI, 7

Respondent,

vs > No. 54,317

DR. RICHARD P. MUCIE,

Appellant. J

APPEAL FROM “HE CrrcuIT CouRT OF JACKSON COUNTY

THe HONORABLE PAUL E. VARDEMAN, JUDGE

(Filed January 12, 1970)

Dr. Richard P. Mucie, a licensed osteopathic physician

and surgeoii, was convicted by a jury of manslaughter by

abortion; his punishment was assessed at 10-years’ impri-

sonment in custody of the Department of Corrections, and

sentence and judgment were rendered accordingly. Sec-

tion 559.100, V.A.MLS.

The victim of the crime charged against Dr. Mucie was

a 19-year-old student at Oklahoma University. Around

Thanksgiving vacation in 1967, she advised her boy friend

that she might be pregnant and they decided to seek an

abortion because she did not wish to have the baby. She

enlisted the help of her boy friend who, in turn, discussed

the matter with his father in January, 1968, at Norman,

Oklahoma. The father was advised of the pregnancy; that

the girl, although engaged to the boy, did not wish to marry

at that time, and that the girl did not want to have the

baby.

On January 30, 1968, the boy’s father called Dr. Mucie

in Kansas City, Missouri, and told him that his son and

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his fiancee had a problem in connection with her preg.

nancy. Dr. Mucie advised the boy’s father to have the girl

examined by a doctor to determine the length of the preg.

nancy. The father learned from his son that the onset

of pregnancy was the first or middle of October, 1967, and,

upon relaying this information to Dr. Mucie, was told by

Dr. Mucie that “it was too late to do anything about it.”

This advice was relayed by the father to his son and the

father was then told that the girl had not been examined.

The father again told his son to have the girl examined

and, subsequently, the son called his father and advised

that his fiancee was then 13 to 14 weeks pregnant. This

information was relayed to Dr. Mucie, who advised the

son’s father to have the girl come to Kansas City on the

evening of February 7, 1968. The father understood that

the cost would be “about four.”

The father told his son of the advice received from Dr.

Mucie and, on February 7, 1968, the son and his fiancee

flew to Kansas City, arriving at 6:30 p.m. They went by

taxi to 1924 East 3lst, Kansas City, Jackson County, Mis-

souri, where they met Dr. Mucie in his Kansas City Sinus

Clinic. They waited in the lobby for ten or fifteen minutes

before the girl went into the inner office. After about fif-

teen more minutes the girl came out with Dr. Mucie. “He

said he couldn’t do anything at the time, but he would take

us, he had made arrangements for us to have a room at

the Ambassador Hotel, and that he would take us there,

and then call us about 11:30 and come pick us back up.”

During the interim the couple ate and attended a show.

At 11 p.m., Dr. Mucie called, and about forty minutes

later arrived at the hotel to take the couple back to the

Sinus Clinic. Dr. Mucie took the girl to the inner office and

the boy waited in the outer office. In 20 to 30 minutes Dr.

Mucie came to the outer office dressed in a surgeon’s gown

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and asked the boy if he would like to pay him before he

started, and the boy paid Dr. Mucie $400 in one hundred

dollar bills. That was the last the boy saw of Dr. Mucie

for several hours except when he came to the outer office

every half hour or so to change music records.

At about 7:30 a.m., February 8, 1968, Dr. Mucie asked

the boy if he wished to see the girl. He went to the inner

office and saw his fiancee lying on a couch with a cover

over her. Dr. Mucie said she was under sedation. He said

“hello” and, although she did not speak, she smiled and

seemed to move her hand. Dr. Mucie gave him some

tomato juice and he went back to the outer office and slept

until around 11:30 a.m.

About 11:30 a.m., he was awakened by Dr. Mucie’s

porter and a little later Dr. Mucie came in and “said that

she had had a heart attack, and that she was in a state

of shock, and they had taken her to the hospital * * * he

was going to the hospital, and he would be right back to

take me there * * * and about another half hour passed,

and I didn’t see him again, so I went to look for him.

* * * T heard Dr. Mucie’s voice in a far back room * * *

he was laying on this bed talking on the telephone to some-

one. * * * He said something to the effect that was it neces-

sary for a coroner to be called in, couldn’t he just file (fill)

out a doctor’s certificate of death. * * * Then I went back

into the office and sat down and he came in about another

five or ten minutes later and told me she had died, * * *

and then he said that the only possible way we could get

out of this is if I said that—went along with him and said

that we had been passing through Kansas City and that

she had had chest pains, and that I had brought her to

him for treatment * * *.”

On February 8, 1968, at about 11:30 a.m., Charles Wil-

liam Sievers, an ambulance driver went with his attend-

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ant to the Sinus Clinic and found the girl lying on a doctor's

cot. Dr. Mucie advised that he detected a heartbeat and

instructed them to take the girl to Osteopathic Hospital and

give her oxygen enroute. They were not advised what

treatment the girl had been given; they noted blood on the

girl’s fingers, stiffness of the arms, and the hand was in

a “clawed” position. Dr. Mucie wiped some blood from

between the fingers of the clawed hand. Upon lifting the

patient, the attendant noted that the girl’s legs did not bend

down, and when in the ambulance he was unable to detect

a pulse or heartbeat.

When the ambulance arrived at Osteopathic Hospital

at 1:00 p.m., Dr. Richard Frederick Spavins, an osteo-

pathic physician and surgeon, examined the girl. He found

no pulse and concluded she had been dead about four hours.

Dr. Spavins called Dr. Mucie and was advised by him that

he had given the girl cardiac resuscitation and an injec-

tion of Vistaril, a tranquilizer, and that he had been treat-

ing her for two weeks for a heart condition. When ad-

vised by Dr. Spavins that he was going to call the coroner,

Dr. Mucie told him he could and would sign the death

certificate. There was no mention of abortion, uterine

hemorrhage or of any treatment other than the cardiac

treatment in the conversation.

The body was taken by the same ambulance to the

morgue at General Hospital.

Detective James W. Smith observed the girl’s body

at the Osteopathic Hospital at about 1:40 p.m., February 8,

1968, and noted needle marks on her arms, buttocks, and

left breast. He later took photographs of the body show-

ing the needle marks. He was present at the autopsy per-

formed on the body at General Hospital by Dr. Raymond

J. Caffrey, a pathologist and deputy coroner, and took

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custody of part of a fetus removed from the girl’s uterus

and the uterus from the girl’s body, both of which were put

into preservative bottles.

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Detectives Kenneth Riddell and Floyd Foster went to

the Sinus Clinic at 6:30 or 7:00 p.m., February 8, 1968, and,

upon examining a trash container, “a dumpster,” also ex-

amined the fetal parts found in the dumpster at the clinic

which he identified as a scapula or shoulder blade, upper

part of the arm including shoulder joint, and a part of a

collarbone. He was unable to fit the parts taken from the

dumpster to the fetus taken from the body but they were

the same parts as those missing from the fetus taken from

the body and were consistent in size. Dr. Caffrey con-

cluded that the girl’s uterus had been pregnant and had

been evacuated in a most unusual fashion. It was empty

except for the large fetal part. There was substantial

hemorrhage beneath the lining of the heart in the wall

of the left ventricle indicative of the type change com-

monly seen in the heart of one who is dying over a period

of several minutes, usually hours, from lack of oxygen, and

is a fairly common accompaniment of persons who die

slowly and in shock. The condition was consistent with

the findings of bleeding through the uterus. An abortion

after four or four-and-a-half months by dilation and cu-

rettement is dangerous because the uterus becomes very soft

and the hazards of perforating the uterus with the scrap-

ing tool go up alarmingly. If it is necessary to evacuate

a uterus after that time, the most generally used procedure

is to open the abdomen much in the manner of a Caesarean

section. Dr. Caffrey believed the girl “died from shock

due to hemorrhage, due to a perforation of her uterus which

was pregnant at the time it was perforated.” The perfora-

tion would have to have been done by something inserted

into the girl’s uterus. He felt the fetus by size was con-

Jane

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sistent with a fetus of four-and-a-half to five months’ gesta.

tion. Dr. Caffrey was cross-examined on a line tending

to show consistency between the dead girl’s condition and

self-induced abortion, but he felt it “highly unlikely” that

even “if we are dealing with a frantic nineteen-year-old

suicidal girl, that such a person could take an object and

tear a fetus.”

Dr. Mucie took the stand to state his own version of

the case. He received a call around February 2, 3, or 4

1968, from a man who stated he had a son in Oklahoma

who had his girl friend pregnant. “He wanted to know if

I knew of anyone here in Kansas City who may help her.”

Upon being told that the girl’s last menstrual period was

around the first of October, Dr. Mucie advised the man

it was too late and dangerous to try to terminate a preg-

nancy after that time. A second call from the man a few

days later advised Dr. Mucie that they had made a mis-

take, that the last menstrual period was the first of De

cember. Dr. Mucie told the man that was “quite a big mis-

take” and to have the girl examined. A third call from

the man advised they could not find a doctor to examine

the girl and the man asked if he could bring the girl to

Kansas City for the examination. He asked the cost of

the examination and Dr. Mucie said, “About $4.” The

young couple came to his office on Wednesday, the day

before the office closed for a day. They arrived at his

office about 6:30 p.m., February 7, 1968, and he examined

her to determine pregnancy and duration of pregnancy.

He found the pregnancy to be of four-and-a-half or five-

and-a-half months’ duration and told the girl nobody could

help her terminate the pregnancy. She became nervous

and said it would kill her father. She said she would kill

herself and Dr. Mucie gave her Vistaril to quiet her. At

their request he drove the couple to the Ambassador Hotel.

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He then went to the lumberyard to get some hinges and

knobs which he wanted to install at his clinic. He went

to his office, did some work, and went to bed about mid-

night. After he went to bed he received a call from the

girl informing him that she was feeling bad all over. “She

was crying and nervous and hysterical.” He told her to

come to the office and she and the boy arrived there at

1:00 or 1:30 a.m., February 8, 1968. “She said, ‘I had to

do it, I just had to do it. * * *’ So I placed her

in a gown and routinely gave her a bimanual vaginal ex-

amination, and there I determined duration of the products

of conception was beginning to protrude from the cervix

itself.” He then examined her with a vaginal speculum

and “I noted there was a protrusion of tissue, placenta tis-

sue and fetal parts. * * * She was in a state of aborting,

and at this time immediate medical attention had to be

instituted. * * * I taken her off this table and I carried

her into this other room onto my surgical table, and here

I placed her in stirrups and such things as that. * * *

Naturally I went ahead and I sterilized the area, I washed

the area with antiseptic soap and then I went in and

painted that with Metaphen in order not to get any infec-

tion, and I took forceps and pulled out this bulging mass

that was there.” He gave Pituitrin to contract her uterus

“and I noticed that the uterine wall was not clean. So

the next proper step is to get a curettement, which I did,

a dull curettement. * * * The reason why I done that is

because the uterus was still boggy. It was not contracting

as it should, and I noticed the bleeding that was occurring.”

He gave her penicillin by injection, Tetracyn, and Ergo-

trate to stop bleeding. He put her to bed around 5:00

or 6:00 a.m. and took a blood count, urinalysis, and blood

pressure, all of which were normal. He rested for awhile

and, about 7:00 a.m., found her hard to arouse after which

he gave medications and initiated emergency and re-

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suscitory procedures. He called an ambulance, told the boy

his girl friend must have had a heart attack, and sent the

girl to Osteopathic Hospital. He told the drivers he

thought she had a faint heartbeat and called the hospital,

He admitted the conversation with Dr. McCanse and

that “most everything he said was more or less the truth,

* * * The reason why I told him that is because (the boy)

told me if there is anything we could do so it wouldn’t be

known she was pregnant. I said, ‘Well, I will try.’ So

Dr. McCanse asked me if I thought there was any preg.

nancy there. I told him I didn’t think so, and we didn’t

mention pregnancy, just there was no use trying to do

something because there was no life there, and if I can

spare humiliation of someone including her father who the

way she expressed it was an individual who was not in

good health and the slightest shock would have caused some-

thing greater.” Dr. Mucie made no records of his treat-

ment of the girl. He stated he did not perforate the uterus

but went “in to clean up the uterus,” not knowing it had

been perforated. Prior to sending the girl to the hospital

he redressed her to avoid its being known she was preg-

nant.

Dr. Richard Wasserman, a doctor of osteopathy, spe-

cializing in obstetrics and gynecology, was called by de-

fendant. He testified in answer to questions relating to

self-abortion and abortion, either induced or spontaneous,

where the abortion is incomplete. He stated that in an

incomplete abortion with part of the fetus outside the cer-

vix proper procedure would be to attempt to complete evac-

uation of the uterus and take preventive measures against

shock and control bleeding. He felt that a curettement

might puncture a uterus because it is soft and cannot be

seen. He knew of no curette small enough to make one

thirty-second inch width tear in a uterus. He found nothing

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in the coroner’s report to indicate marks on the dead girl’s

cervix to show insertion of a curette.

Dr. Lawrence S. Merritt, a specialist in obstetrics and

gynecology in Norman, Oklahoma, testified in rebuttal that

he saw the girl February 5, 1968, did a pelvic examination,

and determined her to be in her twenty-first week of preg-

nancy, consistent with a last menstrual period around

September 16, 1967.

The girl’s father identified a letter from his daughter

postmarked February 2, 1968, in which she stated her hap-

piness, her engagement, described the nice person her fi-

ance was, and her carefree college life.

Katy Monfort, the girl’s roommate, saw the girl Febru-

ary 7, 1968, and she did not seem upset. She talked by

long distance telephone with the girl that night and she

heard the boy laughing in the background. The call was

made by the girl to ask Katy to hand in her homework

the next day and to tell her plan to be home the next day.

Section 559.100, V.A.MLS, provides in part: “Any per-

son who, with intent to produce or promote a miscarriage or

abortion * * *, uses * * * any instrument or other method

or device to produce a miscarriage or abortion (unless the

same is necessary to preserve her life or that of an un-

born child, or if such person is not a duly licensed physician,

unless the said act has been advised by a duly licensed

physician to be necessary for such a purpose), shall, in

event of the death of said woman * * * upon conviction

be adjudged guilty of manslaughter, and punished accord-

ingly.” Under the statute, as it applies to appellant, a

duly licensed physician, the offense is made out and the

conviction sustained when it is shown that he used an

instrument or device to cause his victim to abort when

such was not necessary to preserve her life, and the pro-

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cedure caused her death. The statement demonstrates

evidence from which the jury could find, as it did, that

Dr. Mucie, with intent to produce a felonious abortion up.

on his victim, used an instrument upon her for the purpose

of terminating an unwanted pregnancy for her as opposed

to performing such an operation as a necessary measure to

preserve her life, and from which acts she died. See State

v. Werbin, Mo., 345 S.W. 2d 103, 107-110[4-5].

Appellant tacitly concedes the sufficiency of evidence

to sustain conviction, but contends that, even so, he should

have a reversal and discharge because the statutory pro

vision “necessary to preserve her life” is “unconstitutional

and is in violation of the due process clause of the Con-

stitution of the United States and the Constitution of the

State of Missouri for the reason that it is unreasonable,

discriminatory, vague and indefinite and in violation of

the right of privacy.” See People v. Belous, Calif., 458 P.

2d 194, and United States v. Vuitch, Nos. 1043-68 and 1044

68, U.S.D.C., D.C., November 10, 1969.

The posture of appellant’s case does not present nor

involve issues entitling him to a determination of his al-

leged constitutional question. The applicable general rule

is that the constitutionality of a statute is considered in

the light of the party seeking to raise the question and of

the particular application of the statute to him, and a con-

stitutional attack may not be made by one whose rights

are not, or are not about to be, adversely affected by opera-

tion of the statute, and one may not urge unconstitutional-

ity of a statute who is not harmfully affected by the par-

ticular feature of the statute alleged to be unconstitutional.

16 C.J.S., Constitutional Law, Sec. 76, pp. 226-231; State

ex rel. State Board of Mediation v. Pigg, Mo., 244 S.W. 2d

75, 79[5,6]; State v. Baskowitz, Mo., 156 S.W. 945, 949-

950[2]; State v. Bockstruck, Mo., 38 S.W. 317, 323. The

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case against Dr. Mucie was made upon affirmative show-

ing that the victim desired and sought an abortion to rid

herself of an unwanted child and that Dr. Mucie performed

the abortion for that purpose. Defendant’s own testimony

was to the effect that the girl came to him in an already,

or incompletely, aborted state, and that his actions were

not those designed to produce abortion but were to “clean

up” after an already, or partially, accomplished abortion.

His testimony did not go to a defense based on the ex-

ception to the statute “unless the same is necessary to

preserve her life,’ but went, rather, to a defense (unbe-

lieved by the jury) that he did not do it; someone else did

it, and he simply tried to save her from the consequences

of a botched job. Attempted support for such defense is

demonstrated by the type questions put to the state’s path-

ologist. Dr. Caffrey, upon his cross-examination, and to de-

fendant’s expert, Dr. Wasserman. The record shows

further proof of the theory of defense when, in the course

of colloquy between court and counsel concerning the

scope of cross-examination of the state’s principal witness,

defense counsel represented to the court and stated, “We

intend to prove that this abortion was a matter of self-

inducement and this is the key crucial issue in this law-

suit. * * * We are contending this couple was so desperate

after having been turned away it was self-induced. * * ’

Our position will be that it was self-induced.” Finally, de-

fendant’s case was not submitted on any theory of acting

in necessity to save life, but was submitted by Instruc-

tion No. 5, which directed that defendant could not be

convicted if the jury found that when the girl went to de-

fendant’s office in the early morning of February 8, 1968,

her pregnancy had already been interrupted and that de-

fendant had not performed an act prior to that time, and

by Instruction No. 6 which directed that if the jury found

that defendant did not make the assault requisite to the

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state’s case, and after an incomplete abortion the defend.

ant did a curettement, even though negligently done, such

would not constitute a criminal offense and could not be

considered in arriving at a verdict.

Thus it is demonstrated that defendant did not seek to

avail himself of any rights under, or bring himself within,

the exception which he alleges to contain elusive or vague

language; he was not harmfully affected by that feature

of the statute, and the question he would pose is thus not

an issue on this appeal. See Kudish v. Board of Registra-

tion, Mass., 248 N.E. 2d 264, 266[2,3].

Appellant contends he should have received a new

trial “because of the prejudicial cumulative effect of the

following errors:

“(a) In allowing the admission into evidence of

“(1) The actual uterus of the deceased

“(2) The fetal parts taken from the body of the

deceased

“(3) Eight photographs of the deceased’s body

“(4) The fetal parts taken from the trash can at

the alleged place of the abortion

“(5) A hearsay letter from the deceased to her

father.

“(b) In allowing the father of the deceased to

testify * * * although the rule prohibiting witnesses

from being in the courtroom was in effect and he had

been present during the trial.

“(c) In allowing Katy Monfort, Bert Ward and

Dr. Lawrence Merritt to testify as rebuttal witnesses

when all of the matters they testified to were properly

part of the State’s case in chief.

“(d) In allowing the State to demand the records

of the defendant in violation of his right against self-

incrimination.”

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Appellant concedes that each of the mentioned errors

“may not have been such prejudicial error to constitute a

reversal, all of the errors taken as a whole * * * amounted

to such prejudicial error that the defendant’s right to a

fair trial was violated.”

Of more damage than this concession with respect to

the charge of cumulative error is the failure of appellant

to raise and preserve an issue of cumulative error in his

motion for new trial. The same defect exists as to the

error charged in connection with the admission of photo-

graphs. Since such charges were not presented to the trial

court in the motion for new trial, they are not preserved

for appellate review. State v. McCrady, Mo., 416 S.W. 2d

175, 177[4]; State v. Nolan, Mo., 423 S.W. 2d 815, 817-

818[4].

Appellant argues that the admission in evidence of the

uterus and fetal parts served no useful purpose since the

cause of death was not denied or disputed, and that their

admission served only to inflame the jury.

It is error to admit evidence of an inflammatory na-

ture if it does not reasonably tend to prove or disprove a

disputed fact issue, State v. Pearson, Mo., 270 S.W. 347,

351. However, other evidence will not prohibit use of de-

monstrative evidence which has probative value in establish-

ing conditions and corroboration of witnesses on the issues

of the case, State v. Tyson, Mo., 258 S.W. 2d 651, 654[3,4].

All of these organs were preserved in clear glass bot-

tles in the manner of laboratory specimens. They had

probative value on size and location of the rent or perfora-

tion and there was dispute whether a curette could make

such a small tear; they demonstrated pregnancy and dura-

tion of pregnancy which went to corroborate the girl’s

wish; they showed the softened condition of the uterus

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which made it more susceptible to damage by a curette

ment; they showed cause of death; they showed use of an

instrument and force upon the uterus and fetus, and con.

nection between actions at the clinic and ultimate findings,

For rule permitting introduction of organs of a deceased,

see 22A C.J.S., Criminal Law, Sec. 716, p. 991, and, in par.

ticular, for admission of a uterus, see People v. Coltrin,

Calif., 55 P. 2d 1161.

The letter in question was admitted in evidence upon

rebuttal to show the victim’s state of mind after defendant

had adduced evidence tending to depict the victim as a

nervous, hysterical, and suicidal girl who, after being re-

fused an abortion, self-induced an abortion which pro-

duced a condition that defendant only treated. The letter

depicted the girl as a happy and stable person, thus show-

ing her mental condition at the time of contacts in her

behalf with Dr. Mucie, and thus rebutting the image at-

tempted by defendant. The propriety of admitting a letter

showing the state of mind of one whose state of mind has

been put in issue was recognized as early as State v. Kring,

64 Mo. 591 (ultimately reversed 107 U.S. 221 on other

grounds). See also State v. Porter, Mo., 111 S.W. 529;

Banovitch v. Commonwealth, Va., 83 S.E. 2d 369, 375[18];

22A C.J.S., Criminal Law, Sec. 742, pp. 1103-1104; I Wig-

more on Evidence, 3d Ed., Sec. 144, p. 581. The proposi-

tion is accurately stated in State v. Prytle, N.C., 132 SE.

785, 786[3]: “These declarations, it should be remem-

bered, were offered, not as proof of the truth contained in

such declarations, but as evidence of the fact that they

were made, thus exhibiting a condition of mind, which

may be shown by sounds or words, spoken or written, or

by emotions displayed, or acts done. Wigmore on Evidence

(2d Ed.) Secs. 143 and 1725.

“The condition of the mind is just as susceptible of

proof as the condition of the stomach, but each can be

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shown to others only by some external manifestation, such

as an expression on the face, or a gesture or appearance

of the body, or some act or speech; and proof of any or all

of these for the sole purpose of showing the state of mind

or intention of the person is proof of a fact or facts from

which the state of mind or intention may be inferred. The

admission of such evidence is not violative of the rule

against hearsay.”

Appellant’s citations are to be distinguished in that in

State v. Benson, Mo., 142 S.W. 2d 52, the questioned evi-

dence was not a declaration on state of mind; in State v.

Cochran, Mo., 203 S.W. 2d 707, the letter writer’s state of

mind was not in question; and in State v. Gorden, Mo., 204

S.W. 2d 713, a hearsay statement was properly refused

because it was offered as proof of its contents, the corpus

delicti in an incest case.

Similar circumstances surround the victim’s father as

a rebuttal witness. In that capacity, he identified the let-

ter from his daughter which was held properly admitted

in discussion of the previous contention. Since the letter

itself was properly admitted, it cannot be said that the

court abused its discretion in permitting this witness to

identify the letter, even though he sat through the trial,

because his testimony was not a matter for the state’s case

in chief and was properly a matter of rebuttal. See State v.

Lord, Mo., 286 S.W. 2d 737, 741[13]; State v. Daegele, Mo.,

302 S.W. 2d 20, 24[8,9]; State v. King, Mo., 119 S.W. 2d 277,

285[ 16,17].

The attack on the rebuttal testimony of Katy Monfort

is governed by the same rule which permitted the victim’s

letter in evidence because her testimony likewise went to

the victim’s mental condition which was put in issue by

the defense. The testimony of Dr. Merritt was offered and

received in rebuttal of defendant’s assertions of the vic-

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tim’s failure to have an examination to determine her

pregnancy and duration of pregnancy prior to final contact

with him concerning the abortion. As such, his testi

was properly rebuttal and was not a part of the state’s case

in chief on the state of the victim’s health.

The record does not support appellant’s charge that

the state was permitted to demand his medical records in

violation of his right against self-incrimination.

Upon cross-examination, Dr. Mucie was asked:

“Q Do you have your records on this patient, sir? A

No, I don’t. Q Did you make records? A_ The condition

she was in I had no time to make records. Q Did you

make records later? A No,I didn’t. * * *

“Q Do you normally make records of someone? A

Yes, Ido. Q Didn’t you think that would be important

that your medical records be intact as to what had been

occurring at your office that evening? * * * A WhenI do

my laboratory work right alongside of a microscope I have

my pad and I jot down what I find and that is what I did.

“Q But even though you knew the coroner would be

called in, you made no medical record? * * * A If the

coroner wanted the lab reports I would have given them to

him.

“Q My point is this, sir, even though you told the

boy that the coroner would probably be called in you made

no medical record? * * * A I just got through telling you

that I did write that down. Q Where is that record? * * *

“MR. QUINN: * * * I object to the last question as

a direct attempt to invade the constitutional privilege of

this man against self-incrimination. * * * This was a de

mand for evidence * * * (and) because of the inference

attempting to be made by the Prosecuting Attorney that

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there was some requirement on this man to produce some

kind of evidence * * *.”

This portion of the transcript has been quoted because

it demonstrates that there was no demand made for defend-

ant to produce any of his records. The questions and an-

swers adduce only a failure to make certain records nor-

mally made and kept by a doctor of medicine; and, with

respect to the laboratory notes, the objection interrupted

any demand to produce that might have followed the ques-

tion, “Where is that record?” Consequently, the posture

of this issue is not that of a constitutional right against

self-incrimination. It is, however, similar to that in Peo-

ple v. Emory, 13 Cal. Rptr. 889, 894[5], where failure of a

physician to keep medical records contrary to normal pro-

cedure was held to raise an inference of connection with

the abortion charged against him. See also People v. Wil-

son, Calif., 153 P. 2d 720, 724[10].

Appellant contends the verdict was excessive and re-

flected such passion and prejudice that it was an abuse of

discretion for the trial court to decline a reduction of

punishment under Section 546.430, V.A.M.S., and Crim-

inal Rule 27.04, V.A.M.R., which provide that a trial court

may reduce a jury’s assessment of punishment if it is

greater than it ought to be under the circumstances of the

case. He concedes that in order for the supreme court to

order a reduction the necessary passion and prejudice and

abuse of discretion must appear clearly in the record. State

v. Caffey, Mo., 365 S.W. 2d 607; State v. Laster, Mo., 293

S.W. 2d 300.

Several factors bear upon a request for reduction of

punishment, but their consideration within the posture of

this case does not warrant a reduction.

One such consideration is whether the penalty was

the maximum provided by law, State v. McHarness, 255

S.W. 2d 826, 829[4,5], but punishment will not be deemed

excessive or the result of passion and prejudice simply

because it is the maximum fixed by statute, State y,

Laster, supra, 293 S.W. 2d Le. 305[3].

A second consideration is whether the crime was a

brutal one, State v. Sheard, Mo., 276 S.W. 2d 191, and this

is of no help to appellant because it was demonstrate

that the victim died over a period of several hours by bleed.

ing to death as a result of defendant’s actions.

Another consideration is the time in which the jury

reached its verdict. This jury reached its verdict after a

lapse of an hour and fifteen minutes, forty minutes slower

than did the jury in State v. Caffey, supra, where the

court refused a reduction urged on this ground.

Another consideration stemming from State v. Caffey,

supra, is whether any specific instances of improper prej-

udicial actions of witnesses, court, or prosecution occurred.

; Appellant argues this point with reference to the allegedly }

inflammatory incidents of trial and exhibits in evidence;

but since it has been demonstrated that they were not mat-

ters of error, they do not serve to support relief on this

ground. Appellant also refers to the court’s admonition

, to counsel to relax and calm down, but this could not be an

instance of prejudice bearing on the jury verdict because

the record shows it occurred in chambers during defense

counsel’s argument on defendant’s right to cross-examine

a state’s witness in support of the defense theory of self-

abortion.

Finally, appellant seeks reduction by citation of a num-

ber of manslaughter cases in which lesser punishments

than that assessed Dr. Mucie were involved. These are

not persuasive on the issue of reduction in that in none

of those cases did the trial or appellate court reduce a

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sentence on a manslaughter conviction under Section

559.100, supra.

Finally, appellant contends the court erred in not

granting a new trial because of newly discovered evidence.

Al9

Appellant’s motion for new trial was due on or before

August 6, 1968. It was timely filed August 5, 1968, but

contained no reference to, or allegation of, newly dis-

covered evidence. Not until October 31, 1968, when appel-

lant filed an “amended” motion for new trial was there

any reference to newly discovered evidence. Conse-

quently, the matter is not for review because it was not

presented to the trial court by timely motion for new trial

in that the amended motion was a nullity. See State v.

Ash, Mo., 286 S.W. 2d 808, 812[9]; State v. Townzell, Mo.,

286 S.W. 2d 785, 787[4]; State v. Miller, Mo., 368 S.W. 2d

353, 360{12,13]; and, with respect in particular to pre-

senting alleged new evidence, see State v. Clark, Mo., 277

S.W. 2d 593, 600[7]. This ruling cannot be an undue

restriction on this appellant. The record shows that he

knew of the alleged new evidence in July, 1968, prior to

filing his motion for new trial August 5, 1968, and made

no move to present the ground to the trial court until

after his time in which to file motion for new trial had

expired. He thus did not exercise the diligence required

of him with respect to newly discovered evidence. State

v. Harris, Mo., 431 S.W. 2d 244, 247[3,4].

Judgment affirmed.

Andrew Jackson Higgins, Commissioner

Houser, C., concurs.

Welborn, C., concurs.

PER CURIAM: The foregoing opinion by Higgins,

C., is adopted as the opinion of the court.

Seiler, P.J., Holman, J., and Henson, Special J., con-

cur. Storckman, J., not sitting.