State v. Fitzporter

• Decision Date: 19 December 1887
• Citation: 93 Mo. 390,6 S.W. 223
• Parties: STATE v. FITZPORTER.
• Court: Missouri Supreme Court

6 S.W. 223

93 Mo. 390

STATE v. FITZPORTER.

Supreme Court of Missouri.

December 19, 1887.

HOMICIDE — MANSLAUGHTER — ABORTION — INSTRUCTIONS.

Upon trial of an indictment for manslaughter, under Rev. St. Mo. § 1241, providing that it shall be manslaughter to produce an abortion on a woman quick with child, "unless the same shall have been advised by a physician to be necessary for that purpose," the court instructed the jury that, if they should find that the defendant destroyed a quick child by the use of an instrument, "and that the same was not necessary to preserve the mother, * * * and was not advised by a physician to be necessary for the purpose" for which it was used, they should find a verdict of guilty. Held erroneous, in that it put the defendant to proof of more than the statute required.

Appeal from St. Louis criminal court; JAMES C. NORMILE, Judge.

C. C. Simmons and G. S. Van Waggoner, for appellants. The Attorney General, for the State.

SHERWOOD, J.

Omitting formal parts, the indictment is as follows: "That John L. Fitzporter, late of the city of St. Louis, on the first day of December, in the year of our Lord one thousand eight hundred and eighty-six, in the city of St. Louis aforesaid, with force and arms, in and upon the body of one Della Myers, a woman then and there pregnant with a quick child, did then and there willfully, feloniously, and unlawfully make an assault, and did then and there willfully, feloniously, and unlawfully use and employ in and upon the body and womb of the said Della Myers a certain instrument, the nature and description of which is to the grand jurors unknown, and did then and there willfully and feloniously thrust and force the said instrument into the private parts and womb of the said Della Myers, with the intent then and there to destroy said quick child, the same not being necessary to preserve the life of the said Della Myers, the mother of the said quick child, and not being advised by a physician to be necessary for that purpose, and by means and in consequence of the use and employment of the said instrument in and upon said Della Myers by the said John L. Fitzporter, as aforesaid, the death of the said quick child then and there ensued and was caused. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said John L. Fitzporter, the said quick child, of and in the said Della Myers, in the manner and form aforesaid, and by the means aforesaid, willfully, feloniously,...