State v. Gow

• Decision Date: 23 May 1911
• Parties: STATE v. GOW.
• Court: Missouri Supreme Court

138 S.W. 648

235 Mo. 307

STATE v. GOW.

Supreme Court of Missouri. Division No. 2.

May 23, 1911.

1. INDICTMENT AND INFORMATION (§ 84*) — ACCESSORY BEFORE FACT.

Under Rev. St. 1909, § 4898, providing that an accessory before the fact to any murder or felony shall be guilty of the same offense and shall be tried in the same way as the principal, such an accessory may be charged as though he were the sole criminal.

2. INDICTMENT AND INFORMATION (§ 111*) — STATUTORY OFFENSES NEGATIVING EXCEPTIONS.

In a prosecution for manslaughter under Rev. St. 1909, § 4458, making any person who commits, procures, or advises an abortion guilty of manslaughter in event of the death of the woman or the quick child, unless the abortion be necessary to preserve the life of either mother or child, or if such person be not a physician, unless the act has been advised by a physician, if accused be not a physician, the indictment or information must allege that the act was not advised by a physician; but if accused be a physician the exception need not be negatived, for the defense does not extend to physicians.

3. INDICTMENT AND INFORMATION (§ 111*) — NEGATIVING EXCEPTIONS.

In a prosecution for manslaughter under Rev. St. 1909, § 4458, making those committing certain fatal abortions guilty of manslaughter, an information against one, not a physician, as an accessory before the fact, which would be insufficient were he himself principal in fact, for failure to negative that the abortion was on a physician's advice, is sufficient when good against the actual principal, as to whom, being a physician, such advice need not be negatived.

4. CRIMINAL LAW (§ 564*) — VENUE — EVIDENCE.

The venue of a crime need not be proven by direct evidence, but may be inferred from the facts in evidence.

5. CRIMINAL LAW (§ 564*) — EVIDENCE — VENUE — SUFFICIENCY.

In a prosecution for manslaughter, evidence held to show the venue of the crime in the county in which it was charged.

6. HOMICIDE (§ 218*) — EVIDENCE — DYING DECLARATIONS — COMPETENCY.

The competency of a dying declaration is a question for the court.

7. HOMICIDE (§ 205*) — EVIDENCE — DYING DECLARATIONS — SURROUNDING CIRCUMSTANCES.

All the circumstances surrounding a dying declaration are competent evidence.

8. HOMICIDE (§ 203*) — EVIDENCE — DYING DECLARATIONS — COMPETENCY.

A criminal abortion was committed upon a woman on Thursday, and she retired to her bed ill. She grew gradually worse until her death on Tuesday. On Monday, while in a very bad condition, she told her mother she was going to die, and that she had become pregnant by accused, and that an abortion had been committed upon her person. Held, that this declaration was admissible as a dying declaration.

9. CRIMINAL LAW (§ 829*) — TRIAL — INSTRUCTIONS.

Where the law has been correctly stated in one instruction, another instruction on the same point may be correctly refused.

10. CRIMINAL LAW (§ 424*) — EVIDENCE — DECLARATIONS OF CONSPIRATORS.

In a prosecution against accused as accessory before the fact to the crime of manslaughter, which crime resulted from a fatal abortion, where the abortionist was a coconspirator with accused, acts done and declarations made by the abortionist after the abortion are admissible in evidence against accused.

11. HOMICIDE (§ 235*) — TRIAL — EVIDENCE — SUFFICIENCY.

In a prosecution for manslaughter, due to an abortion, evidence held to support the verdict.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Clyde Gow was convicted of manslaughter, and appeals. Affirmed.

R. H. Norton, Dudley & Palmer, and Avery, Young & Woolfolk, for appellant. Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

KENNISH, P. J.

At the January term, 1909, of the circuit court of Audrain county, appellant was convicted of manslaughter in the second degree, sentenced to imprisonment in the penitentiary for a term of four years, and appealed to this court.

The original information, which contained three counts, was filed in the circuit court of Lincoln county on March 20, 1908. Two amended informations were filed, each containing three counts. After the defendant had entered a plea of not guilty to the second amended information, he applied for and was granted a change of venue to the circuit court of Audrain county. The case was tried in the Audrain county circuit court at the January term, 1909. The state dismissed as to the first and third counts; the defendant was again arraigned, entered a plea of not guilty to the second count of the second amended information, was placed on trial, found guilty, and his punishment assessed as stated.

The count of the information upon which the defendant was convicted is as follows:

"And the said Brevator J. Creech, prosecuting attorney within and for the county of Lincoln, in the state of Missouri, acting herein under his oath of office and on his knowledge, information, and belief, gives the court to further understand and be informed that Clyde Gow, on the 20th day of February, A. D. 1908, at the county of Lincoln, in the state of Missouri, in and upon the body of a certain woman, to wit, one Lizzie Gleason, did then and there willfully, unlawfully, and feloniously make an assault, and did then and there willfully, unlawfully, and feloniously use and employ and advise and cause and procure to be used and employed in and upon the body, womb, and private parts of the said Lizzie Gleason, a certain instrument, the exact nature and description of which instrument is to this informant unknown, and did then and there willfully, unlawfully, and feloniously insert, thrust, and force the said instrument, and advise, cause, and procure the said instrument to be inserted, thrust, and forced, into the body, womb, and private parts of the said Lizzie Gleason, with the willful, unlawful, and felonious intent then and there to procure and promote the miscarriage and abortion of the said Lizzie Gleason, the same not being necessary to preserve the life of the said Lizzie Gleason, and not being necessary to preserve the life of an unborn child then in the womb of the said Lizzie Gleason, and not being advised by a duly licensed physician to be necessary for the purpose of preserving the life of the said Lizzie Gleason, and not being advised by a duly licensed physician to be necessary for the purpose of preserving the life of an unborn child then in the womb of the said Lizzie Gleason, thereby then and there willfully, unlawfully, and feloniously inflicting in and upon the body of the said Lizzie Gleason and in and about the womb and other internal parts of the said Lizzie Gleason certain mortal wounds and lacerations, and creating in the said Lizzie Gleason a mortal sickness, disease, and feebleness of body, of which mortal wounds, lacerations, disease, and feebleness of body she, the said Lizzie Gleason, did languish and languishing did live from the 20th day of February, A. D. 1908, until the 25th day of February, A. D. 1908, on which said 25th day of February, A. D. 1908, the said Lizzie Gleason, at the county of Lincoln, in the state of Missouri, by means and in consequence of the willful, unlawful, and felonious use and employment of the said instrument as aforesaid, and of the mortal wounds, lacerations, sickness, disease, and feebleness of body produced and inflicted by the use and employment of the said instrument as aforesaid, did then and there die.

"And so the said Brevator J. Creech, prosecuting attorney, as aforesaid, upon his oath of office aforesaid, does say that the said Clyde Gow, by the means and in the manner and form aforesaid, the said Lizzie Gleason, willfully, unlawfully, and feloniously did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

The evidence for the state tended to show the following facts:

From the fall of 1906 until the latter part of February, 1908, the defendant, an unmarried man, 38 years of age, was pastor of two churches in Lincoln county, one located in Elsberry and the other a country church known as Smith's Chapel, located several miles north of Elsberry. In the winter of 1907 and 1908, Lizzie Gleason, 22 years of age, taught a country school about eight miles north of Elsberry. During that winter she boarded at the home of B. F. Greene, which was near her school and Smith's Chapel, but usually went to her mother's home in Elsberry on Friday or Saturday and remained until Monday morning. During the fall and winter of 1907 and 1908, the defendant showed Miss Gleason some attention, accompanied her to and from church several times, drove her to and fro between Elsberry and her school three or four times, visited the home of Greene where she was boarding, visited her school, met and engaged her in conversation frequently on the streets and in the stores of Elsberry.

In the latter part of January, 1908, the young woman became sick, exhibited symptoms of pregnancy, and in February gave up her school and returned to the home of her mother in Elsberry. On Thursday, February 20, 1908, she went down town from her mother's home in Elsberry and returned in about two hours in a very nervous condition. According to her mother's testimony, she "seemed like anybody with a very hard chill." She took to her bed on the same day and on Friday evening became violently ill. Saturday she grew worse and had Dr. Hemphill, a physician of Elsberry, called to attend her, requesting that he be called instead of Dr. Bailey, the family physician. Dr. Hemphill made several visits, but the condition of the young woman grew rapidly worse. Sunday night her sister remained with her and waited on her until about 3 o'clock Monday morning. At that hour her mother came to the sick room to care for her during the remainder of the night. After the sister left the room, she said to her mother: "Ma, I am going to die, and I have got...