Beasley v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: Beasley v. People of State , 89 Ill. 571, 1878 WL 10086 (Ill. 1878)
• Decision Date: 30 September 1878
• Parties: WILLIAM H. BEASLEYv.THE PEOPLE OF THE STATE OF ILLINOIS.

89 Ill. 571

1878 WL 10086 (Ill.)

WILLIAM H. BEASLEY

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

At the June term, 1877, of the Knox county circuit court, William H. Beasley was indicted for the crime of murder, in producing an abortion on Mattie Naslund from the effects of which she died.

In the first count of the indictment it is charged, the accused “did unlawfully, feloniously and willfully use a certain instrument called a gum-bougie, by then and there forcing, thrusting and inserting the said instrument, called a gum-bougie, into the womb and private parts of one Mattie Naslund, then and there being a woman pregnant with child, and in the peace of the people, with intent then and there to produce the miscarriage of the said Mattie Naslund, and did thereby unlawfully, feloniously and willfully, with malice aforethought, cause the miscarriage of said Mattie Naslund, it not being then and there necessary to cause such miscarriage for the preservation of the life of said Mattie Naslund (the said William H. Beasley then and there well knowing that the use of said instrument as aforesaid at the time aforesaid in the manner aforesaid would produce such miscarriage), by reason whereof the said Mattie Naslund from the said sixth day of May, in the year aforesaid, did languish, and languishing did live, on which said nineteenth day of May, in the year aforesaid, at the county aforesaid, the said Mattie Naslund died.”

In the fifth count it is charged, accused “did then and there, unlawfully and feloniously, and of his malice aforethought, administer to one Mattie Naslund, then and there being a woman pregnant with child, in the peace of the people then and there being, a certain noxious and abortifacient drug, the name of which said noxious and abortifacient drug is to the grand jurors unknown, with intent then and there to produce the miscarriage of the said Mattie Naslund, * * * it not being then and there necessary to administer said noxious and abortifacient drug, the name of which is to the grand jurors unknown, for the preservation of the life of said Mattie Naslund.” The other counts of the indictment do not differ materially from these counts, except as to the description of the manner and means used to produce the abortion.

On the motion to quash the indictment the principal points made by defendant were as follows:

1. The said indictment was not returned into open court by a grand jury impaneled under the laws of this State.

2. Each and every count of said indictment is defective in that they all and each fail to allege that the abortion or miscarriage was not produced or attempted as necessary to save the life of the person alleged to have been murdered, (Mattie Naslund).

8. Each count is defective in that it simply negatives the absolute necessity of producing abortion in order to save the life of Mattie Naslund, and would make this defendant criminally liable for an honest and excusable error.

The court overruled the motion to quash the indictment, and at the October term, 1877, of the circuit court, defendant was placed on trial, and on conviction was sentenced to the penitentiary for a period of four years. Motions for a new trial and in arrest of judgment were severally overruled, and defendant brings the case to this court on error.

The three principal errors, which it is said includes all others, upon which defendant relies for a reversal of the judgment, are as follows:

1. The circuit court erred in refusing to grant defendant's motion to quash the indictment.

2. The circuit court erred in refusing to grant defendant's motion to set aside the verdict and for a new trial.

3. The circuit court erred in overruling defendant's motion in arrest of judgment.

Messrs. MCKENZIE & CALKINS, for the plaintiff in error.

Mr. J. J. TUNNICLIFFE, State's attorney, for the People. Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the motion to quash, a question is made against the indictment, it was not returned into open court by a grand jury legally impaneled under the laws of this State. Twenty-three grand jurors were in fact chosen, and all of them were duly summoned to attend, but on the roll being called only twenty-two of the number chosen answered, and the one failing to answer was by the court excused from service for cause shown.

The grand jury was then regularly organized by appointing a foreman and administering to them the usual oath, and consisted of twenty-two members out of the twenty-three chosen. The grand jury thus organized is the one that found the indictment against defendant.

That which is said to render the grand jury an illegal body is, that the court omitted to direct the sheriff to summon from the body of the county another person having the qualifications of jurors, to fill the panel. By section 16, chapter 78, entitled “Jurors,” it is declared, “a panel of a grand jury shall consist of twenty-three persons, sixteen of whom shall constitute a grand jury.” It must be understood the word “panel” is used in this connection in its commonly accepted sense. According to Roget it is equivalent with “list, catalogue, inventory, schedule, register, record.” Lexicographers generally adopt as one definition that given by Blackstone, viz: “a schedule containing the names of persons whom the sheriff returns to serve on trials.” It will be observed it is the “panel” or “list” or “schedule” that shall consist of twenty-three persons, and not the grand jury, for it is expressly declared sixteen of the persons whose names are on the panel or list of jurors selected, “shall constitute a grand jury.”

But as section 9 of the same chapter provides that “if, for any reason, the panel of the grand jury shall not be full at the opening of such court, the judge shall direct the sheriff to summon from the body of the county a sufficient number of persons having the qualifications of jurors, as provided by this act, to fill the panel,” it is said it was error to omit the duty enjoined.

That depends upon the construction that shall be given to this clause of the statute,--whether it shall be held to be mandatory or only directory. Reading the word shall as may, as is allowable from the context, it is simply directory. That is plainly its meaning. When more persons, whose names appear on the list chosen, than are necessary under the law to constitute a grand jury, answer for service, what immediate necessity can there be for filling the panel before organizing the grand jury? Plainly none, as sixteen of the number selected are all that are necessary for that purpose. Evidently it was intended it should be left to the discretion of the judge presiding whether there was any necessity or not for filling the panel at once.

Whether the indictment was defective in not negativing, in the precise language of the statute, the fact the abortion may have been produced or attempted as necessary for the preservation of the life of the mother, presents a question of some difficulty, and one not altogether free from doubt. That clause of the statute under which the indictment was found makes it a crime of a high grade, and if the death of the mother ensues, it is murder for any one, “by means of any instrument, medicine, drug or other means whatever, to cause any woman pregnant with child to abort or miscarry, or attempt to produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother's life.” The indictment charges in one count, that by means of a certain...