State v. Stevenson

• Decision Date: 21 August 1896
• Citation: 35 A. 470,68 Vt. 529
• Parties: STATE v. LYDIA A. STEVENSON
• Court: Vermont Supreme Court

35 A. 470

68 Vt. 529

STATE v. LYDIA A. STEVENSON

Supreme Court of Vermont

August 21, 1896

MAY TERM, 1896

Indictment under R. L., s. 4247, for attempt to procure an abortion, whereby the woman died. The respondent demurred generally to the indictment. Demurrer overruled, pro forma. The respondent then plead not guilty and a trial was had by jury, all at the September term, 1895, Franklin County MUNSON, J., presiding. Verdict guilty. The respondent excepted to the action of the court in overruling the demurrer and also took various exceptions during the trial which are immaterial in view of the decision of this court.

Indictment adjudged insufficient and quashed; respondent discharged.

C. G. Austin and F. W. McGettrick for the respondent.

OPINION

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The respondent was tried on an indictment containing six counts, the last two of which were abandoned by the prosecution before the trial commenced. The respondent interposed a general demurrer to each count. The court pro forma overruled the demurrer and adjudged the indictment sufficient.

It is insisted by the respondent that the indictment is insufficient, in that it contains no averment that a miscarriage was not necessary to preserve the life of the woman. In each count, it is averred that the means employed, with intent to procure a miscarriage, were not necessary to preserve her life. R. L., s. 4247, provides that a person who willfully administers, advises or causes to be administered anything to a woman pregnant, or supposed by such person to be pregnant, or employes or causes to be employed any means with intent to procure a miscarriage of such woman, or assists or counsels therein, unless the same is necessary to preserve her life, shall if the woman die in consequence thereof, be imprisoned in the state prison not more than twenty years and not less than five years, etc. This statute renders all acts done and performed upon a woman, pregnant, or supposed to be pregnant, with intent to procure her miscarriage, criminal, unless the same was necessary to preserve her life. "The same" here refers to the miscarriage and not to the means employed to procure a miscarriage, as is contended by the counsel for the state.

The purpose of the statute is to suppress, by penal inflictions the evil of procuring miscarriages, and it prohibits the employment of any means with intent to procure a miscarriage, unless a miscarriage is necessary to preserve the life of the woman. Any other construction would render the exception nugatory. It cannot be said that the thrusting of an instrument into a pregnant woman, who is otherwise in perfect health, is necessary to preserve her life, or that the employment of any of the means commonly used to procure a miscarriage is necessary to preserve her life; but it may be necessary to procure a miscarriage in order to save her life, and the exception provides for such a necessity, and nothing more. Therefore, under the statute, it is an offence to employ means with intent to procure a miscarriage, unless a miscarriage is necessary to preserve the life of the woman; and it is not an offence, if the miscarriage is necessary to preserve her life. If a miscarriage was necessary to preserve the life of the pregnant woman, all acts done with the intent to procure it were lawful; but if unnecessary, criminal. Hence, the acts antecedently charged to have been...