Hensley v. The State

Decision Date09 October 1886
Docket Number12,932
Citation8 N.E. 692,107 Ind. 587
PartiesHensley et al. v. The State
CourtIndiana Supreme Court

From the Marion Criminal Court.

The judgment is affirmed, with costs.

J. W Gordon, L. O. Bailey, W. T. Brown and C. F. Robbins, for appellants.

W. N Harding, Prosecuting Attorney, B. Harrison, W. H. H. Miller J. B. Elam and J. B. Kealing, for the State.

OPINION

Niblack, J.

On the 11th day of June, 1885, the grand jury of Marion county returned an indictment in two counts against Charles S. Hensley and John Dearbaugh, for procuring an abortion upon the body of one Mary S. Hensley, a pregnant woman, in violation of the provisions of section 1923, R. S. 1881.

The first count charged the miscarriage of the said Mary S. Hensley, by the use of an instrument with intent to produce such a result.

The second count charged the miscarriage of the said Mary S. Hensley, by the like use of an instrument, by reason of which she afterwards died.

Upon his appearance to the indictment, Charles S. Hensley pleaded specially that, on the 11th day of February, 1885, the grand jury of Marion county found and returned into court an indictment against him, in three counts; that the first count charged him, the said Charles S. Hensley with having, on the 14th day of January, 1885, unlawfully, feloniously and wilfully used an instrument upon the person of Mary S. Hensley, with the intent thereby to procure and produce the miscarriage of the said Mary S. Hensley, by reason of which she, the said Mary, miscarried, and afterwards, on the 19th day of January, 1885, died; that the second count charged him, the said Charles S. Hensley, with having, at the time named, and in the same manner, and with like intent, used an instrument on the person of the said Mary S. Hensley, by reason whereof, and on account of which she, the said Mary, afterwards died; that the third count charged John Dearbaugh with having, on said 14th day of January, 1885, unlawfully, feloniously and wilfully introduced an instrument into the womb of the said Mary S. Hensley, with intent thereby to procure and produce the miscarriage of her, the said Mary S. Hensley, whereof she, the said Mary, thereafter, on said 19th day of January, 1885, died, and further charged the said Charles S. Hensley with having feloniously incited, encouraged, counselled, procured, hired and commanded the said Dearbaugh to commit the crime so perpetrated by him; that, on the 12th day of February, 1885, he, the said Charles S. Hensley, was arraigned upon said indictment and entered a plea of not guilty thereto; that afterwards, on the 25th day of May, 1885, a nolle prosequi was entered as to the second count of such indictment, and all further proceedings on said count were, in consequence, discontinued; that thereupon the cause was called for trial and a jury was impanelled and sworn to try the issues formed upon the first and third counts of said indictment; that the parties then proceeded with the trial of said cause, including the introduction of evidence, which was continued until the 27th day of said month of May; that, on said last named day, and before the argument was commenced, the prosecuting attorney asked leave to withdraw the third count of the indictment from the consideration of the jury, and to dismiss the cause as to said third count; that over his, the said Charles S. Hensley's objection, the leave thus asked for was granted, and the cause as to such third count of the indictment was accordingly dismissed; that the cause was thereafter submitted to the jury on the issue joined on the first count of the indictment; that the parties named and described in said third count of the indictment in question were the same as those named and described in the indictment in this case, and that the crime charged in such third count was based upon the same transaction constituting the alleged crime charged in this case; that by reason of the matters herein above set forth, he, the said Charles S. Hensley, has, through the medium of said third count of the indictment so returned against him on the 11th day of February, 1885, been once put in jeopardy on the charge contained in the indictment in this case, and that, on that account, he ought not to be further tried, vexed or...

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