105 Ill. 452 (Ill. 1882), Baker v. People

Citation:105 Ill. 452
Opinion Judge:Mr. MULKEY, JUSTICE.
Party Name:CLARENCE BAKER v. THE PEOPLE OF THE STATE OF ILLINOIS
Attorney:Messrs. C. J. & C. C. JOHNSON, for the plaintiff in error. Mr. JAMES MCCARTNEY, Attorney General, Mr. WALTER STAGER, State's Attorney, and Mr. WILLIAM BARGE, for the People.
Case Date:September 27, 1882
Court:Supreme Court of Illinois
 
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Page 452

105 Ill. 452 (Ill. 1882)

CLARENCE BAKER

v.

THE PEOPLE OF THE STATE OF ILLINOIS

Supreme Court of Illinois

September 27, 1882

March 1883, Decided

Rehearing Denied March Term 1883.

WRIT OF ERROR to the Circuit Court of Whiteside county; the Hon. J. V. EUSTACE, Judge, presiding.

Judgment reversed.

Messrs. C. J. & C. C. JOHNSON, for the plaintiff in error.

Mr. JAMES MCCARTNEY, Attorney General, Mr. WALTER STAGER, State's Attorney, and Mr. WILLIAM BARGE, for the People.

OPINION

Page 453

Mr. MULKEY, JUSTICE.

At the March term, 1882, of the Whiteside circuit court, Clarence Baker and Eliza Graves were indicted by the grand

Page 454

jury, tried, and convicted of the crime of attempting to procure and produce the miscarriage of Martha Van Antwerp, an unmarried woman, then pregnant with child, of the age of about nineteen years. Motions for a new trial and in arrest of judgment having been severally overruled, they were duly sentenced by the court, in pursuance of the verdict of the jury, to the penitentiary for a period of two years. Baker alone brings the case here on error, and assigns various reasons for a reversal of the judgment.

The indictment charges that the said Clarence Baker and Eliza Graves did, on the 17th day of December, 1881, at and within the county of Whiteside, "unlawfully, feloniously and willfully use and employ a certain instrument, the name of which is to the jury unknown, in and upon one Martha Van Antwerp, and then and there being pregnant with child, by then and there forcing, thrusting and inserting said instrument into the private parts of the said Martha Van Antwerp, and then and there did thereby unlawfully, feloniously and willfully attempt to procure and produce the miscarriage of said Martha Van Antwerp." A motion to quash the indictment for insufficiency having been overruled by the court, the question is directly presented whether the indictment is legally sufficient to sustain the conviction.

It is objected by counsel for the People, that inasmuch as the record fails to show the plaintiff in error excepted to the ruling of the court in disposing of the motion to quash, the question of the sufficiency of the indictment does not arise on the record, and hence whatever the fact may be with respect to its alleged insufficiency, we are not permitted to consider it. This is a misapprehension. The rule contended for only applies where the ruling of the court is based upon extrinsic matter, which does not, without being embodied in a bill of exceptions, constitute a part of the record. There is no more necessity for excepting to the ruling of the court upon a motion to quash an indictment, than there would be

Page 455

for excepting to the ruling of the court upon a demurrer to a plea...

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