In his appeal of the conviction for the abortion death of Emily Albright in 1911, Dr. C. E. Bingaman sought a new trial, which in 1912 he was granted by the Superior Court. However, a jurisdictional issue was determined by Court, in that the abortion was begun in Northumberland County. In an opinion which included some detailed medical information, it was concluded the decision for the re-trial had to be left to the prosecutors of Schuylkill and Northumberland counties. The prosecutors agreed on Northumberland County and preparation was made to try the case at Sunbury. Then came the twist – actually two twists. Because the other physician, Dr. T. C. Fegley had been acquitted of performing an abortion in Tremont, the case had to be tried in Northumberland, where the abortion took place. And, in 1913, the time had run out to present the case to a Northumberland County Grand Jury, so Dr. C. E. Bingaman could not be tried at all.
Dr. Bingaman’s medical career was “saved by the bell” and he went on to be a successful practitioner. Ironically, he died of peritonitis at age 42 following an attack of appendicitis in 1926. His obituary stated:
There was never a more popular physician anywhere than Dr. Bingaman. Children loved him and he loved them. He had the happy faculty of making friends and holding them. His presence in the sick room always inspired confidence and the will to combat the patient’s ailments.
The story is told through local and regional newspaper articles.
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From the Pottsville Republican & Herald, February 17, 1912:
WILL ARGUE BINGAMAN CASE
The case of Dr. C. E. Bingaman, who was sentenced to serve two years for attempting an illegal operation upon Miss Emily Albright of Mt. Carmel will be heard before the Superior Court at Williamsport, on February 27 [1912].
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From the Pottsville Republican & Herald, February 27, 1912:
BINGAMAN CASE IN SUPERIOR COURT
The argument upon the Bingaman case in which Dr. C. E. Bingaman was convicted of attempting a criminal operation upon Miss Emily Albright, of Mt. Carmel, and which had been appealed to the Higher court for the purpose of securing either a reversal or a new trial in case was held before that tribunal at Williamsport today. The argument for the Commonwealth was made by E. W. Bechtel, special counsel for the Commonwealth during the second trial, while the presentation of Bingaman’s case was looked after by C. E. Berger. Bingaman was sentenced to serve two years for the offense.
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From the Pottsville Republican, February 28, 1912:
BINGAMAN DECISION EXPECTED IN MARCH
When the Superior Court meets during the week of March 11 [1912] it is expected that the decision in the case of Dr. Bingaman will be handed down. If a new trial is given it will probably be started on Thursday of that week.
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From the Pottsville Republican & Herald, June 18, 1912:
SHERIFF GLASS HERE
Sheriff John Glass of Shamokin, was a visitor to the court house today and renewed many acquaintances made during his prosecution of Dr. C. E. Bingaman of Reading, who was tried and convicted here in September [sic] last for performing a criminal operation upon Miss Emily Albright, of Mt. Carmel. At that time the present Sheriff was County Detective of Northumberland Company.
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From the Pottsville Republican & Herald, October 14, 1912:
LOWER COURT REVERSED
Special to the Herald.
Pottsville, October 14 [1912] — This morning the Superior Court rendered a decision reversing the lower court in the case of Dr. Bingaman, who was convicted at the September term, 1911, and sentenced by Judge Bechtel to two years and five months imprisonment. The decision of the higher court grants him a new trial.
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From the Pottsville Republican, October 18, 1912:
SUPERIOR COURT QUEER DECISION
The Superior Court in overriding the verdict convicting Dr. Bingaman of attempted abortion and granting him a new trial in the case in which he was charged with having been responsible, for the death of Miss Albright of Mt. Carmel, a nurse in the Pottsville Hospital, decided that the attempt at abortion had been made in Shamokin and therefore overruled the local [Pottsville] court on the question of jurisdiction.
The prosecution will take an appeal to the Supreme Court.
The interesting point will be raised in this case as it is contended that no abortion was committed in Northumberland County, but only the attempt was made in that county, while the abortion itself occurred in Schuylkill County. As Bingaman was convicted only on the charge of attempt it is claimed that he was not guilty on that count in Schuylkill County, and would have to be tried on that charge in Northumberland County. The decision of the higher court has the local attorneys scratching their heads to ascertain just what it does mean and some have figured it out that it will be a difficult matter to get a conviction in a case of this kind where the abortion is started in one county and finished in another. The opinion in full follows:
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OPINION
This defendant was jointly indicted with Dr. T. C. Fegley, under Section 87 and 88 of our Crimes Act, of March 31, 1950, Public Law 404; the verdict being, as to this defendant, “Guilty on Count No. 1, namely, attempt to procure abortion; not guilty of second count, namely abortion followed by death, and as to Dr. T. C. Fegley, not guilty on both counts.”
The case was ably tried by zealous counsel and after a careful review of the record, we sustain the fifth and sixth assignments of error; the others are not sustained. The defendant who was an intern at the Pottsville Hospital admitted that in October 1910 he had sexual intercourse with Emily Albright, who was a student nurse in the same institution. The next month the girl left the hospital, and returned in the February following. During her absence she became convinced that she was pregnant, and notified Dr. Bingaman of that fact, by letter (as well as to several other persons), accompanied with the statement “That she was not at all afraid she would get rid of it, because she had used a catheter.” On March 1, she resumed her duties at the hospital, and the next day had a severe fall in a corridor which resulted in sufficient injury to produce a hemorrhage from the vagina. After a visit to her mother she communicated with Bingaman, and went with him to Shamokin, in Northumberland County, and there remained with him, over night, after registering as man and wife, at the Graemar Hotel.
The important question in the case is fairly raised by the appellee, under the fourth caption in the argument: “Can a defendant who uses instruments on a woman, with an intent to procure an abortion, in one county, be convicted in another county, where delivery takes place as a result of such act? and he frankly reviews the proof as follows:
“While the evidence in this case does not specifically show where the condition was produced which Miss Albright is alleged to have been in, when she and Dr. Bingaman came to the office of Dr. Fegley on the night of March 6 [1911], it does show that she and Dr. Bingaman were together until they arrived at the office of Dr. Fegley at eight o’clock on the night of the operation. It does show that Dr. Bingaman and Miss Albright were together all night at the Graemar Hotel in Shamokin.”
It must be conceded, as urged by the appellant, “That the only place where the Commonwealth concluded that Dr. Bingaman had used any instruments upon Emily Albright was in Shamokin in Northumberland County.”
This was the view accepted by the learned trial judge who stated in his general charge (fifth assignment): “It is contended here by the Commonwealth and their theory is, that this abortion was started by Dr. Bingaman the night he spent with Emily Albright in Shamokin…. Now I will say to you, it has been argued to you concerning the question of jurisdiction. You do not need to bother with that, because we have jurisdiction in this case. The defendants have not pleaded to the jurisdiction of the court, nor have they at any time raised the question to the Court, and that is a question of law for us to dispose of and not for the jury; at any rate, it is not disputed that a baby was taken from this woman at Tremont, which is in this county, so that, it does not make any difference, whether the abortion was started in Shamokin, or whether it was started in Tremont, for the purpose of the jurisdiction of this court. We have jurisdiction in this case, I say to you as a matter of law.”
By this it is manifest, that the learned trial judge considered the question of jurisdiction fairly raised before the court, and decided it against the contention of the defendant. It should not be doubted that the court had jurisdiction of offenses committed in Tremont which is in Schuylkill County, and it is just as clear that it did not have jurisdiction of an offense which was completed in Shamokin, in Northumberland County. Inasmuch as the verdict as to this defendant was guilty of attempt to procure abortion it becomes a controlling question of fact for the jury to decide, whether the defense charge in the first count in the indictment was an entire, perfected offense in Shamokin, without any independent over act in Schuylkill County.
The theory of the Commonwealth which was adopted by the trial judge, was that anything done by Dr. Bingaman at Shamokin in pursuance of an attempt to commit an abortion there, he having brought his victim into Schuylkill County and the crime was consummated by the delivery of the child, he might be convicted in Schuylkill County because the attempt was a continuing offence.
This was not an indictment for a common law offence, but was framed, and the case was tried for the crimes charged in Section 87 and 88 of the Crimes Act.
The distinction between the sections is clearly defined in Ratting v. Commonwealth 110 Pennsylvania 100, and the view taken by the trial judge was clearly prejudicial to this defendant. This is the more apparent by the point submitted by the defendant and the answer thereto (sixth assignment): “If the jury believes that delivery of Emily Albright was inevitable because of the condition observed by the physician at the office of Dr. Fegley, to wit, the profuse hemorrhage; that the mouth of the womb was dilated; the statements made in their presents by said Emily Albright as to her previous use of a catheter, that she had done all she could to bring on an abortion, and that she felt it was coming; that… after the first packing the hemorrhage continued and was still profuse, it was proper for the defendants, acting as physicians, to empty the uterus in the manner their experience dictated to be proper under the circumstances.” Answer, “We affirm the point, if the jury find that the defendants were not responsible for her condition: “to this should have been added, “and if the jury find that the offense was completed in Northumberland County the defendant could not be convicted of the offense in Schuylkill County.” The sections quoted do not provide for an attempt to procure an abortion as a substantive offense, on one county, being a continuing offense in another county, where the actual abortion is is consummated by the physical delivery of the foetus [fetus].
There is no statutory provision for such a condition and until the legislature so declares the offense must be triable in the Court of Quarter Sessions of the county, in due form of law, where the act is consummated.
The jury was fully warranted in believing, under the instruction of the court, that under the circumstances of the case, Dr. Bingaman could be convicted in Schuylkill County, for an unsuccessful attempt in Northumberland County; even if they believed that what was done by Drs. Bingaman and Fegley in Schuylkill County was perfectly innocent and justifiable.
In acquitting Dr. Fegley the jury could only have concluded that all that was done under his direction in his office was honestly done by him in a desperate attempt to save the life of Miss Albright and there was no overt criminal act done by either at that time. Independent of what occurred in Dr. Fegley’s office there was no evidence of any attempt in Schuylkill County.
The Commonwealth contended at the trial and on argument here, that the criminal acts were not done by Miss Albright, but were committed by Dr. Bingaman in Shamokin.
Under the charge of the court, taken in connection with the defendant’s point and answer there by the jury might easily decide that the sequential effect of the Shamokin attempt, which developed in Tremont, constituted a substantial offense at the latter place and accordingly they found the defendant guilty of an attempt to procure an abortion. The answer should have been clear, unequivocal and responsive; as it was, there was a misapprehension as to the jurisdiction of the Court, and it withdrew the attention of the jury from a very material fact.
For the reasons above given, the judgment is referred and a new trial awarded.
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From the Pottsville Republican & Herald, December 30, 1912:
BINGAMAN CASE UNDER CONSIDERATION
The record of the Superior Court directing a new trial in the Bingaman case, because of the alleged lack of jurisdiction in the local Court in convicting the defendant of attempted abortion is now in the hands of District Attorney Whitehouse and a review of the case is being made with the idea of entertaining whether the case shall be re-tried here [Pottsville] or in Northumberland County. If it is determined to try the case in Northumberland the record will be certified from this county to the officials of the latter county.
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From the Pottsville Republican, January 23, 1913:
BINGAMAN CASE IN NORTHUMBERLAND COUNTY
Sheriff John H. Glass of Northumberland County and Dr. C. M. Molone of Shamokin were notified to prepare to try the case of Dr. C. E. Bingaman of Reading, who was convicted in the Pottsville courts of having performed a criminal operation upon Miss Emily Albright of Mt. Carmel which resulted in her death a few years ago and who has been awarded a new trial with a change of venue to the Northumberland County courts. Sheriff Glass is the prosecutor in the case and Dr. Malone, who was coroner in Northumberland County at the time the girl’s death occurred, is one of the principal witnesses.
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From the Pottsville Republican & Herald, February 24, 1913:
MAY NOT TRY DR. BINGAMAN
The matter of a new trial in the case of Dr. C. E. Bingaman of Reading , was brought to the attention of the court today, and it was pointed out that in view of the decision of the Superior Court upon the allowing of evidence and the ruling out of evidence submitted here [Pottsville], it would be practically useless to try Dr. Bingaman for the charge upon which he was formerly charged here. He was tried and convicted in that court and sentenced by Judge Bechtel to serve two years in prison. An appeal was later taken to the Superior Court and the local decision was reversed and a new trial ordered. The legal proposition in the case is a peculiar one. He was convicted of attempting to perform the operation and was later acquitted of the real operation which had been performed in Dr. Fegley’s office at Tremont in the hope of saving the girl’s life, as alleged by the defense. Dr. Fegley was also acquitted of having a part in the operation. Under the law it was then charged that Bingaman had attempted the operation in the Hotel Graemar at Shamokin [Northumberland County] and therefore could not be tried in the county [of Schuylkill] for the offense. As the last case will be outlawed under the two years limit of the statute before the next Grand Jury can meet, there is no possibility of his being tried in that county. The court here was of the opinion that to try the case here would limit the Commonwealth to the testimony of Dr. Fegley and practically mean an acquittal. It is said the case will be not prossed with the consent of the authorities but the [Superior] court refused to enter a verdict of not guilty and clear Bingaman of the charge unless he undergo a routine jury trial.
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From the Mauch-Chunk Times News, November 19, 1926:
DEATH RECORD – DR. C. E. BINGAMAN
Dr. Charles E. Bingaman died at the Palmerton Hospital yesterday, from complications following an operation on November 6 [1926]. Dr. Bingaman was seized with an attack of appendicitis and was rushed to the Palmerton Hospital where Dr. Batchelor performed an operation and appeared to be progressing toward recovery until about a middle of the week following when another operation was performed to relieve a bowel stricture. Peritonitis set in, but the physicians managed to curb this condition, and once more it appeared that he would improve. However, his weakened constitution could not withstand the shock and after lingering until yesterday death ended his sufferings.
There was never a more popular physician anywhere than Dr. Bingaman. Children loved him and he loved them. He had the happy faculty of making friends and holding them. His presence in the sick room always inspired confidence and the will to combat the patient’s ailments. He loved outdoor sports and was a powerful athlete and baseball, football and hunting enthusiast. His fraternal affiliation included the Lehighton Lodge of Elks, Odd Fellows, Patriarchs, Knights of Malta, Knights of Friendship, P. O. S. of A., and a number of others. He was a graduate of the Jefferson Medical School of Philadelphia.
He is survived by his widow, his parents… and… brothers and sisters….
Funeral services will be conducted at his late home on Delaware Avenue on Monday afternoon at 1:30 o’clock, interment to be made in Towamensing Cemetery.
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From the Reading Times, November 20, 1926:
DR. C. E. BINGAMAN, 42, of Palmerton, died at his home yesterday. He was a son of Mr. and Mrs. John Bingaman… Reading, and was a graduate of Birdsboro High School, Keystone Normal and JeffersonMedical College. He practiced in Reading 12 years before coming to Palmerton….
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News articles from Newspapers.com.
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