State v. Helton
| Citation | 164 S.W. 457,255 Mo. 170 |
| Parties | THE STATE v. JAMES W. HELTON, Appellant |
| Decision Date | 17 February 1914 |
| Court | United States State Supreme Court of Missouri |
Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.
Reversed.
John C McKinley, J. F. Smith and W. O. Jackson for appellant.
(1) The section of the statute on which this proposition is bottomed is violative of section 28, article 4, of the Constitution in that it contains matters not clearly set forth in the title thereto, and contains more than one subject which are not set forth in said title to said act. This present section of the statute, R.S. 1909, sec. 4458, corresponds to the amended statute passed in 1907, Laws 1907, p. 230, when the Legislature evidently aimed to amend the statute relating to manslaughter and designated in the Revised Statutes of 1899 as section 1825. That section was one of the manslaughter sections that had been running through the statutes and was punishable as for death of the mother or quick child, where the mother was pregnant with quick child; the amendment of 1907 changed the offense and the name of the offense, from manslaughter to abortion and likewise the punishment, which in its essential elements took it out of the manslaughter statute entirely, but in the title of the bill no notice of the radical change was given, the title of the bill enacted in 1907, being, "An Act to repeal section 1825 of article 2, chapter 15, of the Revised Statutes of Missouri 1899, entitled 'Crimes and Punishments' and to enact a new section (in lieu thereof, to be known as section) 1825," and goes on in the body of the section and provides that upon the doing of certain acts, the physician, whether the woman be pregnant or not, shall be guilty of "the crime of abortion" and punished, etc. This cannot be done in that way. Constitution, sec. 28, art. 4; State v. Coffee Co., 171 Mo. 639; State ex rel. v. County Court, 102 Mo. 537. (2) The instructions asked by defendant and refused by the court to the effect that the jury before they could convict, must find and believe that defendant "knew or believed that the woman was pregnant," should have been given. Under the evidence in this case it was a proper cautionary instruction and having been asked should have been given. Commonwealth v. Nailor, 29 Pa. S.Ct. 271. (3) The court erred in directing attorney Dawson, of counsel for the State, to "go ahead" instead of rebuking him, for calling defendant a serpent, to which defendant's counsel objected. Evans v. Trenton, 112 Mo. 390; State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350; State v. Fisher, 124 Mo. 460; State v. Bobbet, 131 Mo. 328. Likewise the court should have rebuked Prosecuting Attorney Chastain for saying in his closing argument: "The witnesses from Green City all knew that he had been charged with rape or an assault with intent to rape Jessie Cameron."
John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
(1) The objection made by the appellant in his motion to quash this information, viz., that Sec. 4458, R.S. 1909, upon which this prosecution is bottomed, is unconstitutional and void, is answered by the case of State ex rel. v. Shields, 230 Mo. 102. (2) Under the fourth, fifth and sixth grounds of the motion to quash, it was contended that Sec. 4458, R.S. 1909, upon which this prosecution is based, is unconstitutional because the title to the legislative act creating this offense did not fully set forth the matters contained in said section. The title to this act clearly expresses the subject of the enactment and therefore the section is not violative of Sec. 28, art. 4, of the Constitution. The general rule on this subject has always been that legislation by reference to sections is valid. State ex rel. v. County Court, 128 Mo. 427. It has ben generally held that although the provisions of Sec. 28, art. 4, of the Constitution are mandatory, yet that they should be liberally construed. The purpose of the title is merely to indicate to the Legislature and the people in clear terms the general contents of the bill. St. Louis v. Tiefel, 42 Mo. 578; State v. Miller, 45 Mo. 495; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Bronson, 115 Mo. 271; Lynch v. Murphy, 119 Mo. 153; State ex rel. v. Slover, 134 Mo. 10; Gabbert v. Railroad, 171 Mo. 84; State v. Coffee Co., 171 Mo. 634; Ferguson v. Gentry, 206 Mo. 189. If the title of an original act embraces the provisions of an amendatory act it is valid, although the title of the amendatory act is not of itself sufficient. State ex rel. v. Ranson, 73 Mo. 78; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Heege, 135 Mo. 112. Mere generality of the title will not vitiate an act unless it shows a design to mislead. Some deference must be paid to the decision of the Legislature as to the title. O'Connor v. Transit Co., 198 Mo. 622. (3) It was proper to prove by the defendant on cross-examination, as affecting his credibility, the fact that he had pleaded guilty to an assault upon one Jessie Cameron. Defendant's conviction of other crimes may be proven by the record thereof or defendant's evidence on cross-examination. State v. Spivey, 191 Mo. 87; State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364; State v. Sasseen, 75 Mo.App. 197. (4) The verdict is not contrary to the law and the evidence. The State offered evidence tending to prove every material fact essential to establishing defendant's guilt, and under appropriate instructions the jury returned a verdict of guilty. This court will not, under such circumstances, convert itself into a trier of facts and undertake to find a different result from that of the jury. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. Williams, 199 Mo. 137. (5) The first instruction follows the language of the statute creating the offense, and is sufficient in every respect to fully define the offense. Sec. 4458, R.S. 1909; State v. Gow, 235 Mo. 307; State v. Castro, 231 Mo. 398; State v. Dean, 85 Mo.App. 473; State v. Van Houten, 37 Mo. 357; State ex rel. v. Shields, 230 Mo. 91. It is true that this instruction does not require the jury to find that the abortion was not advised by a duly licensed physician to be necessary, but that exception in the statute is not open as a defense to a duly licensed physician. Sec. 4458, R.S. 1909; State v. Gow, 235 Mo. 324. (6) The appellant complains that the trial court permitted improper argument on the part of State's counsel. This assignment is not subject to review, as the alleged improper remarks are not set out in the motion for a new trial, where they should have been in order to be reviewable. State v. Jeffries, 210 Mo. 337; State v. Baker, 209 Mo. 451; State v. Clapper, 203 Mo. 384. Furthermore, we do not find that any request was made at any time to rebuke the assistant prosecuting attorney for calling the defendant "a serpent," nor do we find that any exception was taken to the failure of the court to reprimand the prosecuting officer. Consequently the remark is not before this court for review. State v. Rasco, 239 Mo. 580; State v. McMullin, 170 Mo. 632.
Defendant, a practicing physician forty-five years of age, was convicted of committing "the felony of abortion" upon one Ruby Seese, in Bates county, Missouri, on July 9, 1912. The first count of the information charges the crime to have been perpetrated by inserting metal instruments into the womb of the prosecutrix with intent to cause an abortion; and the second count charges the administering of drugs to prosecutrix with the same felonious intent. At the close of the State's testimony, the prosecuting attorney elected to stand upon the first count charging an unlawful use of instruments, as denounced by section 4458, Revised Statutes 1909.
From a judgment finding defendant guilty and fixing his punishment at a fine of $ 200 and one year in the county jail, he appeals.
The evidence discloses that about ten o'clock on the evening of July 9, 1912, while defendant and prosecutrix were leaving his office, they met the father of prosecutrix. He was in an angry mood and assaulted defendant on the street. On the same night the father also caused the defendant to be arrested on a charge of rape upon prosecutrix. The defendant was locked up on said charge of rape for some three months, when that charge was voluntarily dismissed by the State, and the information filed charging him with the felony of abortion.
To prove a motive for defendant's alleged acts in trying to produce an abortion upon prosecutrix, the State introduced evidence tending to prove that defendant had kept company with her for several weeks, and that he had ravished her on May 15, 1912. Her version of this transaction is that on the night of May 15th the defendant walked with her to a point near a cemetery in the suburbs of Butler, Missouri, and, "by placing a handkerchief saturated with some kind of sweet-smelling stuff to her nose and mouth" caused her to immediately become unconscious, and while in that condition he took her into a near-by field, and had sexual intercourse with her. That she was so completely overcome by the anaesthetic so applied to her nose and mouth by defendant while they were walking along the street that she scarcely realized the act of sexual intercourse until they were returning to her home, when defendant told her of it and requested her not to tell her family.
Prosecutrix further testified that she missed her menstrual periods due to occur on May 25 and June 25, 1912, and that, her health becoming poor, she informed defendant of her condition, and thereupon he called her to his office and inserted a...
To continue reading
Request your trial