Baker v. People of State
| Decision Date | 27 September 1882 |
| Parties | CLARENCE BAKERv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Whiteside county; the Hon. J. V. EUSTACE, Judge, presiding.
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.
At the March term, 1882, of the Whiteside circuit court, Clarence Baker and Eliza Graves were indicted by the grand 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 for excepting to the ruling of the court upon a demurrer to a plea or declaration, and it will not be pretended, we presume, there is any necessity, or even propriety, for an exception in that case. Gallimore v. Dazey et al. 12 Ill. 143; Safford et al. v. Vail, 22 Id. 327.
The indictment is claimed to be defective in two respects: First--It is insisted that it does not, with sufficient certainty, describe the nature or character of the instrument with which the alleged attempt to commit the offence charged was made, and numerous authorities are cited in support of the position. We have examined all of them, except one or two which are not within our reach, and many others bearing on the question which are not cited, and from a very thorough consideration of the question we are satisfied the indictment in this respect is, on general principles, substantially good. Under the circumstances of this case, as the name of the instrument was unknown, while its form and character were known, it would have been more proper, according to the highest degree of technical accuracy, to have given some general description of it, such as “a certain metallic instrument, whose name is unknown,” etc. But this would have added but little, if anything, to the averment by way of making it more definite or perspicuous, nor would the addition have materially aided the accused in obtaining an accurate understanding of the transaction for which he was indicted.
Second--It is urged the indictment “is uncertain as to the mode or manner in which the offence charged was attempted to have been committed.” Like the other objection, we do not think there is any substantial ground for it. While the indictment would have been somewhat more specific by adding the words, “ and womb,” after the words, “ private parts,” yet the omission to add them does not, in our judgment, render the indictment fatally defective. We think the indictment is substantially good, and that consequently there was no error in overruling the motion to quash. Regina v. Ashmall, 9 C. & P. 236, (Eng. Com. L. R. 97); Commonwealth v. Snow, 116 Mass. 47; Commonwealth v. Jackson, 15 Gray, 187.
The conviction in this case rests mainly upon the testimony of the prosecuting witness, Martha Van Antwerp. It is true she is strongly corroborated in some respects by circumstances testified to by other witnesses. From her testimony it appears that about the first of September, 1881, she had sexual intercourse with, and became pregnant by, the defendant Clarence Baker, under a promise that if he got her in trouble and did not...
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