Foster v. State

Citation196 N.W. 233,182 Wis. 298
PartiesFOSTER v. STATE.
Decision Date11 December 1923
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to Municipal Court of Racine County; E. R. Burgess, Judge.

A. M. Foster was convicted of feloniously producing the death of a child, and he brings error. Reversed and remanded.

Plaintiff in error, hereinafter called the defendant, was prosecuted under the provisions of section 4352, Stats. 1923, and convicted of having feloniously produced the death of the child of one Anna Jung. The evidence showed, among other things, that Miss Jung was advanced in pregnancy from six to eight weeks; that she consulted the defendant; that he made an examination and pronounced her pregnant, and performed a criminal operation upon her resulting in a premature expulsion of the fetus. He claimed the evidence fails to show that Miss Jung was pregnant; that there is not sufficient proof of his having performed an operation; and that, if guilty at all, he should have been prosecuted under the provisions of section 4583, Stats. 1923, relating to producing a miscarriage. To test the correctness of his claims he sued out a writ of error.Whaley & Erickson, of Racine, for plaintiff in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and G. E. Smalley, Asst. Dist. Atty., of Racine, for the State.

VINJE, C. J. (after stating the facts as above).

We shall not devote any time to the discussion or recital of the evidence further than to say that it sustains a finding that Miss Jung was pregnant; that the defendant performed a criminal operation upon her by means of which the embryo or fetus was prematurely expelled; and that there were no prejudicial errors in the trial of the case.

[1] The really serious question in the case is whether the defendant was prosecuted under the proper section of the statute. Section 4352, under which he was prosecuted, reads as follows:

“Any person who shall administer to any woman pregnant with a child any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother or shall have been advised by two physicians to be necessary for such purpose, shall, in the case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.”

It is found in the chapter relating to “Offenses Against Lives and Persons.” The penalty for its violation is imprisonment in the state prison from four to seven years.

Section 4583 reads as follows:

“Any person who shall administer to any pregnant woman, or prescribe for such woman, or advise or procure any such woman to take any medicine, drug or substance or thing whatever, or shall use or employ any instrument or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman shall be punished by imprisonment in the county jail not more than one year nor less than six months or by fine not exceeding five hundred dollars nor less than two hundred and fifty dollars, or by both such fine and imprisonment in the discretion of the court.”

It is found in the chapter entitled “Offenses Against Chastity, Morality and Decency.” It is evident that the Legislature did not intend to define the same offense in the two sections. In the latter it defines the offense of an act intended to produce miscarriage or one that does produce miscarriage. Rodermund v. State, 167 Wis. 577, 168 N. W. 390. In order to commit such an offense there must be a pregnant woman. A normal pregnancy can exist only where there is embryonic life in the womb of the pregnant woman; therefore, in order to commit the offense of producing a miscarriage, there must be a destruction and expulsion of embryonic life. So we have a statute covering the offense of destroying and expelling from the womb embryonic life. This offense is one, not against a person because the law does not recognize a mere embryo as a person or human being, but is an offense against morality because it is against good morals to destroy that which otherwise presumably would develop into a human being. It interferes with the normal functions of nature in the perpetuation of the race.

The offense described in section 4352 constitutes manslaughter in the second degree and is by statute included under the denomination of “homicide,” which means the killing of a human being. Section 4347, Stats. 1923; 13 R. C. L. 734; 29 C. J. 1049. Neither in popular nor in scientific language is the embryo in its early stages called a human being. Popularly it is regarded as...

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7 cases
  • State v. Beale
    • United States
    • North Carolina Supreme Court
    • February 9, 1989
    ...See State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); Foster v. State, 182 Wis. 298, 196 N.W. 233 (1923). We disagree with the State's contentions. Assuming that the problems of proving causation have decreased due to technolog......
  • State v. Timm
    • United States
    • Wisconsin Supreme Court
    • March 14, 1944
    ...to prove that the child was alive when the defendant operated. It cites State v. Walters, 199 Wis. 68, 225 N.W. 167, and Foster v. State, 182 Wis. 298, 196 N.W. 233, in support of the latter claim. The contention made in these cases, however, turned on the question whether the pregnancy had......
  • State v. Forte, 722.
    • United States
    • North Carolina Supreme Court
    • January 8, 1943
    ...Parker, 9 Mete..Mass., 263, 43 Am.Dec. 396; State v. Cooper, 22 N.J.L. 52, 51 Am.Dec. 248; Evans v. People, 49 N.Y. 86; Foster v. State, 182 Wis. 298, 196 N.W. 233. In Commonwealth v. Parker, supra, it is said: "It was only considered by the ancient common law that the child had a separate ......
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • June 30, 1976
    ...coextensive with the capability for independent human life, a concept embraced within the term Viability. (Cf. Foster v. State (1923) 182 Wis. 298, 196 N.W. 233.) If future medical art succeeds in further lowering the age of viability, then the protection of the statute will follow, for it ......
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