35 A. 470 (Vt. 1896), State v. Stevenson

Citation:35 A. 470, 68 Vt. 529
Opinion Judge:START
Attorney:C. G. Austin and F. W. McGettrick for the respondent.
Judge Panel:Taft, J., dissenting.
Case Date:August 21, 1896
Court:Supreme Court of Vermont

Page 470

35 A. 470 (Vt. 1896)

68 Vt. 529




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.



          [68 Vt. 530] 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,...

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