State v. Owens

22 Minn. 238, 1875 Minn. LEXIS 63

• Court: Supreme Court of Minnesota
• Decided: October 13, 1875
• Status: Published

Opinion

Cornell, J.

The challenge interposed to the panel of the petit jury by the defendant was properly overruled by the court. Upon the admitted facts the vepy contingency of a deficiency of jurors had happened which authorized the issuing of a special venire, under Laws 1870, ch. 88, § 7.

“Where the offence may have been committed by the use of different means, the indictment may allege the means of committing the offence in the alternative.” Gen. St. ch. 108, § 6. Under this provision of the statute the indictment in the present case is sufficient as respects the moans alleged to have been made use of to effect the crime charged.

The indictment charged, in the language of the statute, “that the defendant did unlawfully and feloniously procure' one Julia A. Mann, a woman,” etc., “ to take ” the alleged drug, etc., “with intent,” etc. It was not necessary, in addition thereto, to allege that the said woman “swallowed” the said drug.

The competency of Dr. Hand to give testimony as an expert in reference to the matter to which he was called was sufficiently shown on his preliminary examination, and defendant’s objections, founded upon his alleged incompetency, were properly overruled.

The indictment in this case charged the commission of the offence specified in Laws 1873, ch. 9, § 1, but a conviction was had under § 2 of the same statute. It is objected by the defendant that these sections do not relate to different degrees of the same offence, and hence that the first clause of Glen. St. ch. 114, § 18, which provides that “ upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto,” has no application. Assuming that defendant is correct in this regard, the last clause of this section, providing that ‘ ‘ in all other cases the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment,” fully sustains the ruling of the court upon this subject and the verdict of the jury. It is quite obvious that all the elements requisite to constitute the crime specified in § 2 of the statute are necessarily included in the commission of the offence under § 1. Whether, in order to convict under § 2, the jury must find the absence of any necessity to preserve the life of the mother or the child, as would be the case under § 1, need not be considered, inasmuch as it is evident that the ruling of the court, as well as the verdict of the jury to that effect, could by no possibility have prejudiced the defendant.

It is also objected by defendant that the court erred in charging the jury that, “ as to the necessity of resorting to abortion to save the life of the mother or child, there is no question here. There is no pretence of any such necessity upon the case as it stands.” As the defendant’s bill of exceptions does not purport to contain the whole case as it appeared in the court below, no error can be predicated upon this ruling such as we would be at liberty to consider. It cannot be presumed that tbe facts did not warrant the charge.

A woman upon whom an abortion has been feloniously produced is not regarded, in law, as an accomplice in the commission of the offence. Dunn v. The People, 29 N. Y. 523; Com. v. Wood, 11 Gray, 85. There was no error in the ruling of the court in this regard.

Pending the appeal in this case the legislature has amended Laws 1873, ch. 9, § 2, by adding thereto the following clause : “ But no conviction shall be had under the provisions of sections one and two of this act upon the uncorroborated evidence of such a woman,” (Laws 1875, ch. 49,) and it is now claimed that this court should grant a new trial because the conviction was had upon the uncorroborated testimony of the said Julia A. Mann. It is a sufficient answer to this position that it does not affirmatively appear from the record before us that there was no such corroborative evidence, and as the case as settled does not purport to contain all the testimony upon this point, the legal presumption is that there was sufficient competent evidence to support the verdict.

As to the verdict, it is deemed sufficient within the rule laid down in the case of State v. Ryan, 13 Minn. 370.

Section 2, of the act of 1873, makes it a crime to “ prescribe, or procure, or provide, for any such woman” (woman with child) “to take any medicine, drug, substance, or thing whatever,” etc., “with intent thereby to procure the miscarriage, or abortion, or premature labor, of any such woman.” Under this section-it is not necessary, to make the crime complete, that the attempt should have the result intended, nor that the thing administered should be of such a character as is likely to produce such result. 2 Bish. Cr. Proc. § 5. If the intent bo to procure abortion, the prescribing, procuring, or providing, for any such woman to take anything whatever, no matter what its character may be, for the purpose of carrying out such intent, is criminal. For this reason it is not necessary that the jury should be able to determine the ingredients, kinds, quality, or quantity, of whatever thing is prescribed, procured, or provided, with such intent, and the statement in the verdict that the ingredients, kinds, quality, or quantity, of the thing which defendant procured the woman to take, with the guilty intent, are unknown to the jury, does not affect their finding that he did procure her to take something, with intent then and there thereby to cause premature labor.

The judgment and sentence of the district court is affirmed.