(187 N.W.)

fendant was compelled to give evidence | than the result of this or any other particuagainst himself, and it distinguishes Boyd lar case. v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746.

[3] Under some circumstances and for certain purposes, the sheriff, upon making an arrest, may search the person of a defendant. This is where money or property may be taken from him which is in any way connected with the crime charged, or which may serve as identifying the prisoner, or which may be used by him in effecting an escape. Commercial Bank v. McLeod, 65 Iowa, 665, 19 N. W. 329, 22 N. W. 919, 54 Am. Rep. 36; State v. Lyon, 176 Iowa, 171, 176, 157 N. W. 742; State v. Browman (Iowa) 182 N. W. 823, 832. But under the evidence before set out and under the authorities to be cited in a moment that is not the question presented in this case.

[4] The state also contends that articles found in a room occupied by a defendant are admissible in evidence, although taken possession of without warrant, or even by trespass. But, as pointed out in State v. Sheridan, 121 Iowa, 164, 168, 96 N. W. 730, most of the cases so holding are where the incriminating evidence has been discovered by persons acting without color of authority, etc. Under such circumstances, some of the cases hold that the remedy is an action for damages. We think the question in the instant case is ruled by the principles announced in State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323, where the question is fully discussed. See, also, State v. Sheridan, 121 Iowa, 164, 167, 96 N. W. 730; Boyd v. United States, 116 U. S. 616-629, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654; Constitution of Iowa, art. 1, § 8, which reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized"

-also Constitution of the United States, supra.

[6] 2. It seems to be proper practice, and sustained by precedent, that when property is so unlawfully seized, to restore it, upon proper showing. Weeks v. United States, supra; Amos v. United States, supra; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Adams v. New York, 192 U. S. 585. We do not find that the precise question has been presented to this court, but in State v. Sheridan, supra, at page 167 of 121 Iowa, at page 731 of 96 N. W., we find this language:

"In such cases parties will be restored to the rights and positions they possessed before they were deprived thereof by the fraud, violence, or abuse of legal process."

[7] 3. We think the instruments were erroneously admitted in evidence for another reason. The jury may have surmised that the instruments were or could be used for the purpose of producing an abortion. It may be so, but there is no evidence in the record to show that fact. Under the circumstances of this case, the admission of the. instruments in evidence under such circumstances was very likely to be prejudicial. Dr. Brinkman, a witness for the state, testified that the catheters are used by physicians and surgeons to insert into the bladder of a male or female to draw urine when a person cannot urinate; the forceps, to reach into a cavity to swab out things; the sound or probe, to probe a wound or sound it outto put into the bladder and see if you can strike a stone; the speculum, to insert into the rectum, or to look into the vagina to see the mouth of the womb. The doctor testifies that he does not know whether such instruments are or not used to produce abortion. The defendant testifies that some of the female members of her family or relatives had been operated upon for kidney or bladder troubles, and that she used the catheters to draw urine, the speculum to pack the vagina to stop hemorrhage, etc.

4. Error is assigned because, over objection, the court admitted evidence showing that defendant had committed abortions on other women, and as to declarations of the defendant that she was engaged in that business. The evidence was admitted on the theory, as indicated by the court's instruc[5] The purpose of these provisions is the tions, that it was to be considered by the jury security which they afford to all citizens only for the purpose of aiding in determining against the zeal of prosecuting officers. The the intent and motive of the defendant in impression seems to prevail in some quarters attempting to produce such miscarriage on that in times of stress-in war-public clam- the prosecuting witness, if the jury should or for the punishment of a supposed notori- | find that defendant did in fact attempt so to ous criminal, in violation of constitutional do. The defendant denies that she attempted provisions, is justified. We have no doubt, to commit an abortion on the prosecuting wit however, that, when so tempted, constitu-ness, but admits that at the time stated when tional restraints should be all the more firm- the state claims an instrument was used she ly binding. There is much more involved made a digital examination and claims to

person charged with the commission of the crime on trial. Numerous cases are there cited illustrating such exceptions, and it was held that that case did not come within any of the exceptions. The appellant contends that evidence of other similar offenses upon others, is not admissible, and especially so where the sole defense is that no act of abortion as charged has been committed by the accused. The trouble with this contention is that such was not the sole defense, for, as we have seen, the defendant was claiming that the attempted abortion, if attempted, was necessary to save the life of the prosecuting witness. Upon this proposition they cite State v. Crofford, 121 Iowa, 395, 404, 96 N. W. 889; State v. Moon, 167 Iowa, 26, 40, 148 N. W. 1001; State v. Weaver, 182 Iowa, 921, 166 N. W. 379; Clark v. Commonwealth, 111 Ky. 443, 63 S. W. 740, 744; People v. Lonsdale, 122 Mich. 388, 81 N. W. 277; People v. Seaman, 107 Mich. 348, 65 N. W. 203, 61 Am. St. Rep. 326; People v.. Spier, 120 App. Div. 786, 105 N. Y. Supp. 741. The Crofford Case was a prosecution for murder by abortion, wherein a conspiracy was charged. It was held that evi

have found evidence of a "dirty disease," | lated to each other that proof of one tends as she puts it, and advised the prosecuting to prove the others, and the identity of the witness to cleanse herself, and so on. It is not claimed that there was any accident in doing what was done. The defendant does claim, however, and introduced evidence of other witnesses tending to show and bearing on the question, whether it was necessary to produce a miscarriage to save the life of the prosecuting witness. Defendant does not herself testify that such was her motive or intention in doing what she did. The defendant requested, and the court gave, an instruction on this subject. The one given was substantially as requested. It is shown that the prosecuting witness weighed but 80 pounds, and had been sickly for some time, and that she was tubercular. On cross-examination of the state's witness Dr. Brinkman it was brought out that, where a person is affected with tuberculosis, it is one of the times that a doctor claims it necessary to commit an abortion to save life. The prosecuting witness, a young married woman 20 years of age, on cross-examination testifies that she had never been pregnant before, and because of her physical condition she did not | think she was strong enough to stand giving birth to a child. A witness for the state testifies, though it is denied by the prosecut-dence as to another abortion was inadmising witness, that prosecuting witness was herself attempting to produce a miscarriage; that she saw her do so. Prosecuting witness had missed one of her menstrual periods, and was supposed to have been pregnant about five weeks.

[8] It is a general rule that a person may not be convicted of one crime by showing the commission of other similar crimes. To sustain its contention that the evidence was admissible, the state cites State v. King, 117 Iowa, 484, 91 N. W. 768, State v. Mulhollen, 173 Iowa, 242, 155 N. W. 252, and other cases from other jurisdictions. The King Case was a rape case, where other acts of intercourse were had with the prosecuting witness, and it was held that the state should have been required to elect upon which transaction it would rely. The evidence was held admissible, however, in that case, for the purpose of showing the relation and familiarity of the parties, and so on. The Mulhollen Case was a prosecution for keeping a house of ill fame, and it was held that evidence of the companion crime of keeping intoxicating liquors was admissible under the circumstances of that case. As said, the general rule is that evidence of other crimes is not admissible.

sible because the other offenses were prior to the time of the formation of the conspiracy, and because there was no connection between the two, the court saying that appellant was being tried for an act alleged to have been committed in January, 1901, and proof of another abortion produced in August, 1900, by some person unknown, could have no bearing upon his guilt of the particular crime charged, without other testimony tending to show his guilt in connection with the earlier offense. The Moon Case was also a charge of murder by abortion.

The question now under consideration came up on the misconduct of the county attorney in asking questions as to whether a witness had been associated with the defendant in connection with other abortions, alleged to have been committed by defendant. The purpose of the offered evidence was, as stated by the county attorney, to show the association and acquaintance of the witness with defendant. This would not come within any of the exceptions before stated. In the Weaver Case it was held that such evidence was not admissible because in that case the intent might properly be inferred from the nature of the act charged, and that [9] There are exceptions to the rule, how- the evidence was therefore not admissible, ever, and these are pointed out in State v. as bearing upon the question of intent. In Vance, 119 Iowa, 685, 687, 94 N. W. 204, that the Seaman Case two persons were jointly evidence as to other offenses is competent to indicted for manslaughter by abortion. establish intent, motive, absence of mistake There was evidence that the premature birth or accident, a common scheme embracing the resulted from accidental causes, and the evicommission of two or more crimes so redence of guilt was circumstantial. It was

(187 N.W.)

held it was not error to admit evidence that defendant produced other abortions within a year previous to the one charged, and that such abortions were committed at the same place. As said, there is no claim of accident in the instant case, and the evidence was not entirely circumstantial. In the Lonsdale Case evidence as to another attempted abortion on another person was admitted. The court held that the case did not come within the rule of the Seaman Case, supra, and that it did not form an exception to the general rule of evidence, and further that, where the intent or guilty knowledge is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible. The court uses this further significant language:

"Upon the record, there is no room for an inference that death resulted from accident, or that the operation was performed to save the life or health of the deceased. On the contrary, if the jury found that the dying declaration of the deceased was true, the crime was complete, and the jury could not find otherwise than that it was done with guilty knowledge and intent."

were too remote we do not determine, because of the indefiniteness of the evidence. Other questions are argued, one of which is the alleged misconduct of the prosecutor. But, since the case is to be reversed on other grounds, we do not pass upon that question, since it may not occur on a retrial. Complaint is made of some of the instructions, but they relate to the question of other similar offenses, and are determined by what has already been said on that subject. For the reasons given, the cause is reversed and remanded for further proceedings.

1. Evidence 383(3)-To overcome a school district record, evidence must be clear and satisfactory.

One seeking to overcome a school district record made 50 years ago is required to establish his claim by clear and satisfactory evidence. 2. Schools and school districts 30-Evidence

insufficient to show boundaries of consolidated school district divided subdistrict.

Evidence held insufficient to show that the boundaries of a consolidated district divided any other subdistrict.

3. Evidence 83(2)—Presumption that officers performed duty in forming school district.

Where a school district had been formed under Code, § 2801, it is presumed that the officers performed their duties and conformed the boundaries to the congressional divisions of land.

[10] We think that in the instant case the evidence complained of was admissible, because defendant was claiming that what she did was for the purpose of saving life. In that case, as bearing upon her intent and motive, we think evidence of other similar offenses, not too remote, was admissible on that question. If defendant did no more than she testifies she did, and for the purpose she says, it may have been entirely innocent. If she used an instrument as testified by the prosecuting witness, and for the purpose of producing a miscarriage to save life, the jury could have found, under the instructions of the court, that what defendant did, if to save life, was innocent, and that there was no criminal intent or willful or unlawful motive. The motive then, and the intent with which the act was done, was material, and the fact, if it be a fact, that defendant was engaged in that business, and committing abortions upon other women, Action in quo warranto in which relator would have a bearing upon the question of asked that the organization of the consoliher intent and motive in doing what she did dated district be declared illegal and void, in the instant case, in the use of instruments, and that it be dissolved, and that the individif she did use them. Her intent in the use ual defendants be decreed to be unlawfully of instruments would not necessarily be in- exercising the powers of their official posiferred from that act alone, since it may tions. Trial to the court. Finding and judghave been done for an innocent purpose. ment that the district had been legally orThere is evidence of declarations of defend-ganized, and that the other defendants may ant that she had been in the business of per- lawfully exercise their positions as officers forming abortions for a good many years, and directors of the district. Relator's petiand evidence of particular instances were tion was dismissed, with judgment for costs. given. As to some of these no date is given, Plaintiff appeals. Affirmed. but from other circumstances in the record we infer that some of them at least were some five or six years prior to the transaction in question. Whether such transactions

Appeal from District Court, Dallas County; Lorin N. Hays, Judge.

W. H. McHenry and Corwin R. Bennett, both of Des Moines, for appellant. W. H. Winegar and George J. Dugan, both

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Perry, and White & Clarke, of Adel, for | defendant consolidated district. Appellees appellees.

PRESTON, J. For a better understanding of the situation, we attach part of a plat introduced in evidence, showing the consolidated district, the independent district of Dawson, and section 2 outside the district.

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contend that there was never any change in the subdistricts of this township until the Dawson independent district was established, and later when the defendant consolidated district was established. If this is so, and the districts composing the consolidated district extend north to the congressional line, there was no division of independent districts, as contended by appellant. Appellant claims, and sought to show by parol evidence, that there was a change about 1892. In argument appellant states his claim thus: In 1892 a subdistrict was established north of the Raccoon river, including parts of sections 2, 3, 4, and 5 (as shown on the first plat set out herein); that later subdistrict No. 10 north of the river was changed to subdistrict No. 2; that the establishment of the consolidated independent district left the remaining portions of subdistrict No. 2 (formerly No. 10) without access to any school and so situated as not to be suitable for the formation of a school township. If they have established their claim by parol evidence, The heavy irregular line near the top rep- then we take it that the claim is that, in resents Raccoon river. The territory peti- establishing the defendant consolidated distioned for and established as defendant district, territory was not taken in which intrict is composed of sections 3 to and includ- cluded a part of the so-called former dising 22, in Dallas county. It includes the trict No. 10, thus dividing said district, and town of Dawson., Territory from four sub- omitting section 2 from the consolidation. districts, Nos. 1, 2, 5, and 6, are included. Relator owns land in section 2. The resiAbout October 1, 1870, the district town-dence building on relator's land is north of ship of Dallas was subdivided by the board the river, and in section 2 outside the deof directors into subdistricts, each contain- fendant district. The north line of sections ing four sections, and being two miles square. 2, 3, and 4 is the north line of Dallas county These subdistricts are Nos. 1, 2, 5, and 6. and Dallas township. Greene county is adA plat so showing was certified by the sec- joining on the north. At one time an addiretary of the school board, and filed and tional schoolhouse was built north of the recorded in the office of the county auditor river, and near the section line between secOctober 25, 1870. This plat was offered in tions 3 and 4. Appellant alleges that the orevidence, and is here set out. ganization of defendant district was illegal because in the formation of the district the lines thereof did not conform to the boundary lines of subdistrict No. 10, which as he alleges, was subsequently changed to subdistrict No. 2. Relator also alleged that by the consolidation Dallas township was so divided by the boundary lines of the consolidated district that it left a part of section 2 without any school facilities or contiguous and so situated as to form a suitable school corporation.

SUB DIST.

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The plat shows the entire district of Dallas, but we set out only so much as includes the territory and subdistricts included in the

The answers of the different defendants deny plaintiff's claims, and allege that the district was legally established. The answer also pleads that defendants offered to furnish relator school facilities in said district, and to transport his children of school age, in the same manner as other children in the district, and that it still so offers. The defendants claim that, in so far as school facilities are concerned, this is a matter for the school authorities, and that plaintiff should appeal to them. In the reply argument appellant states that he does

(187 N.W.)

not now claim any relief in this case for the | nesses give testimony tending to show that deprivation of school privileges, but only for a district such as they claim was established, the jurisdictional defects in the establishment of the consolidated district. The principal controversy is whether there was a subdistrict established and known as subdistrict No. 10, and later changed to subdistrict No. 2, plaintiff alleging such to be the fact, and defendants denying it. Defendants contend that the north boundary of 3 and 4 is the congressional line, and that there was no subdivision of the district to the north.

time; never saw any record of any action taken by the board. Some of these witnesses testify that they went before the school board to get a schoolhouse built for the children north of the river, and it seems that at one

but for the most part they do not pretend to state or to know the boundaries of such a district, or that the boundaries were ever fixed, or that the alleged lost records fixed boundaries. It would be necessary for plaintiff to so show, before it could be claimed that the principal fact was established, that the consolidation divided another district or other districts. There is evidence on behalf of plaintiff tending to show the formation [1] Plaintiff's proposition just stated in- of subdistrict No. 10, and that they undervolves others: First, whether, the records stood the boundaries thereof on the south having been lost as plaintiff claims, parol ev- were the river, but for the most part they idence is admissible at all to show the estab-state that they do not remember even who lishment of subdistricts as claimed by appel- constituted the board of directors at that lant; and, second, whether, if such evidence is admissible, appellant laid proper and sufficient foundation as to the loss of records to permit the introduction of parol evidence; and, further, whether, conceding the last two propositions, plaintiff has sustained the bur-time a petition was presented asking the den, and established his claims by that clear board for a subdistrict north of the river. and satisfactory evidence required in such Some of the witnesses say they do not know cases, and that therefore the establishment of whether this petition cortained a description the defendant consolidated district divides of any real estate or not. They do say, howthe alleged subdistricts 10 and 2, contrary to ever, that the board decided to build a schoolthe mandatory provisions of the statute. We house north of the river, and this was done, think appellant is, and should be, required that there were a number of children of school to establish his claim by clear and satisfac-age living north of the river. Other witnesstory evidence, since he is seeking to over- es say that they remember when the schoolcome a record made some 50 years ago, as house north of the river was built, and that shown by the second plat hereinbefore set it was sometimes called subdistrict No. 10, out. No appeal was taken from the county but they say they did not know it had ever superintendent to the board of education in been established or what the boundaries the proceedings when the petition for the were; that they did not know anything establishment of the consolidated district about the boundaries. Another witness teswas presented, or at least an attempted ap- tifies that he was one of the committee that peal was too late. Appellant makes no point went before the school board and asked for as to this. The case was brought at law, but a school north of the river; that they were it was agreed at the trial that it should be after a schoolhouse, and they got what they tried as in equity. wanted, and did not know whether the board in fact organized a subdistrict, and knew nothing of the boundaries. Another witness, who was secretary and treasurer of the board at the time schoolhouse No. 10 was built, says he remembers the committee coming before the board; that they were asking for a schoolhouse north of the river, and their request was granted; does not recall that anything was said about the bounda ries, and does not remember any fixing of the boundaries; does not recollect any record of the district township showing any boundaries. A record was produced of the school board in Dallas township for 1895 and subsequent years after the alleged loss of prior record showing expenditures for the new schoolhouse in the so-called subdistrict No. 10. The evidence shows that teachers were hired and school was maintained there, a schoolhouse built, seats provided, and so on.

on

[2] Appellant cites authority that, proof of the loss, destruction, or inability to produce a public record, secondary evidence may be admitted. When the petition for consolidation was presented, the county superintendent examined the records, and therefrom determined that the establishment of the defendant consolidated district would not divide other districts. As we understand appellant, he claims that she should have inquired of the inhabitants of the district as to the boundaries. It is somewhat doubtful whether she would be required to do this, and make an investigation and a determination contrary to the records. But conceding, for the purposes of the case, but without deciding, that the proper foundation was laid, and that parol evidence was competent, still we think plaintiff has not established his claim by the evidence. The recollection of the witnesses, or most of them, as to what occurred along about 1892, some 30 years On the other hand, testimony on behalf of ago, is not clear. Several of plaintiff's wit- | defendants tends to contradict the testimony