#### STATE v. DR. G. D. GARDNER.

(Filed 1 May, 1946.)

1. Criminal law § 51—

The legal sufficiency of evidence to go to the jury is for the court; its credibility, weight and significance are for the jury, upon appropriate instruction by the court respecting the degree, or intensity of proof required to convict.

2. Homicide § 25—

Evidence of defendant’s guilt of manslaughter in .an attempt at criminal abortion held sufficient to be submitted to the jury, but as a new trial is ordered on an exception relating to the admission of evidence, recitation of the evidence is not necessary.

*3113. Criminal Law §§ 42e, 81c — Admission of entire news articles, without proper correlation for pui’pose of impeaching witness, held error.

Two witnesses for defendant testified, in corroboration of testimony of defendant, that they saw a taxi leave the defendant’s residence at the time in question, in conformity with defendant’s statement as published in articles in the local papers. The articles referred to did not contain any statement relating to a taxi. The State, over objection offered in evidence the entire articles for the purpose of contradicting and impeaching the witnesses. Seld: Since the statements of the witnesses and the news stories were not sufficiently correlated for the purpose of contradiction and impeachment, the admission of the entire news articles, which constituted second-hand evidence of the events recorded therein, was error, and since the articles contained statements prejudicial to defendant beyond those admitted by defendant in his testimony, the admission of the news articles cannot be held harmless.

Appeal by defendant from Sink, J., at January, 1946, Term of BtJNOOMBE.

Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.

Jones & Ward and Henry Fisher for defendant, appellant.

Seawell, J.

The defendant was convicted of manslaughter in an attempt at criminal abortion, and sentenced to State Prison for a term of not less than three nor more than ten years. The appeal brings up his demurrer to the sufficiency of the evidence and objection to the admission of exceptive matter during the trial.

In one instance the exception to the admission of evidence seems to merit a new trial. Since the whole ground must be gone over again, we see no sufficient reason, in considering the motion for judgment as of nonsuit, to perpetuate in full in our reports tragic and morbid details, however necessary it may be to present them to the trial court. An analysis of the evidence, pointing out the inferences which may be drawn from it, is not desirable, and it is the practice of the Court to avoid it unless the exigencies of decision clearly require it.

The legal sufficiency of evidence to go to the jury is for the court; its credibility, weight and significance are for the jury, upon appropriate instruction by the court respecting the degree, or intensity of proof required to convict. Applying this rule in the present review, we are of the opinion that the evidence was properly submitted to the jury.

We direct our attention to the admission in evidence of the news accounts of defendant’s arrest, and incidental circumstances contained in the Asheville Times and Asheville Citizen respectively in the issues of 25 October, 1945.

*312Tbe defendant bad testified in bis own bebalf tbat Mrs. Cordell, alleged victim of tbe criminal abortion at bis bands, bad been found by bim upon tbe steps of bis borne in a weak condition and desperately sick about 7:00 o’clock in tbe morning, apparently having been brought by a taxi which be said drove rapidly out of bis driveway and down tbe street before be could get any information about her or why she bad been brought. Tbe woman herself, be testified, was too weak and sick to give tbat information. He testified tbat be made no examination of her, and did not know what was tbe matter with her, but did tbe best be could for her until her death in bis place about 1:00 o’clock tbe same day. Tbe autopsy indicated instrumentation at tbe cervix of tbe uterus, and tbe infliction of a wound in tbe anterior wall of tbe uterus extending in a ragged tear from tbe cervix to tbe top caused, in tbe opinion of tbe testifying experts, by tbe use of a curette in an attempt to produce abortion. Tbe woman was about four months advanced in pregnancy. Opinion evidence tended to show tbat Mrs. Cordell could not have survived tbe infliction of this wound for a longer period. than twenty or thirty minutes.

In this situation tbe following took place:

Arthur Ford, for tbe defense, testified tbat be saw a taxi coming out of Dr. Gardner’s driveway between a quarter to 7:00 and 7:30 pretty fast, going down Mitchell Avenue. Tbat be bad read Dr. Gardner’s statement in tbe paper about tbe taxi and discussed it with bis wife— read tbe statement to her and told her, “One thing be did tell tbe truth about tbe taxi.” "Witness stated be also talked about seeing tbe taxi to a Mr. Crook. Tbat Dr. Gardner came to bis bouse, and at bis request be went to tbe office of Dr. Gardner’s lawyer and talked to bim about it. Dr. Gardner’s statement in tbe paper, witness said, mentioned tbe taxi. Witness was uncertain about tbe date be read it in tbe paper, whether tbe 23, 24 or 25; but it was sometime after Tuesday; in bis opinion Wednesday evening.

C. L. Crook testified tbat be also read tbe statement of Dr. Gardner about tbe taxi bringing tbe woman to bis place, and bad a conversation with witness Ford about it, and Ford said, “You know I seen tbat taxi coming out of there, I believe it was yesterday morning or when tbe paper said it was.” Witness said he’d read it in tbe paper tbe night before.

Tbe State in rebuttal identified news stories concerning tbe arrest of Dr. Gardner appearing in tbe Asheville Citizen and tbe Asheville Times of 25 October. C. R. Sumner testified tbat be bad written tbe first account of tbe arrest appearing on tbe front page of tbe Citizen of tbat date. Tbe articles in tbe Times and Citizen were introduced in their ■entirety over objection and exception by defendant. They do not con*313tain a statement by Dr. Gardner snob as tbe witness Eord claimed to bave seen and commented upon witb' reference to tbe appearance of tbé taxi. Tbe purpose of tbe introduction of tbe documents was to impeach tbe witnesses on a supposedly vital point, although tbe evidence appears to bave been admitted without restriction to that effect.

If tbe State bad succeeded in laying an exact basis for tbe evidence, so that tbe statement of tbe witnesses and tbe news stories could be sufficiently correlated for tbe purpose of contradiction and impeachment, and if tbe newspaper accounts bad been free from prejudicial statements, tbe evidence might bave been either admissible or harmless; but it does not clearly appear that either of these conditions actually prevailed. Tbe State argues here that defendant bad already admitted tbe main facts of bis history contained in tbe articles — bis conviction of crime and service in tbe Atlanta Penitentiary, loss of bis license to practice as a physician and other damaging facts. But we bave tbe impression that there were other statements in tbe news stories which were not free from prejudicial inferences, and that tbe summary they contained might bave affected tbe result in a way not contemplated in their introduction, and so bave fallen under tbe ban as second-hand evidence of tbe events recorded.

For error in tbe admission of this evidence, the defendant is entitled to a new trial. It is so ordered.

New trial.