Clark v. People

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Clark v. People, 224 Ill. 554, 79 N.E. 941 (Ill. 1906)
• Decision Date: 22 December 1906
• Parties: CLARK et al. v. PEOPLE.

224 Ill. 554

79 N.E. 941

CLARK et al.

v.PEOPLE.

Supreme Court of Illinois.

Dec. 22, 1906.

Error to Circuit Court, Pike County; Harry Higbee, Judge.

Ida Clark and Henry Clark were convicted of murder, committed in an attempt to procure an abortion, and bring error. Affirmed.Jefferson Orr, Edward Yates, William Mumford, and Frank Dulaney, for plaintiffs in error.

W. H. Stead, Atty. Gen., and Mark Bradburn, State's Atty. (Williams & Williams, of counsel), for defendant in error.

CARTER, J.

Plaintiffs in error were indicted by the grand jury of Pike County at the November term, 1905. The indictment contains four counts. The first charges, substantially, that the defendants, Ida and Henry Clark, feloniously and of their malice aforethought, with a certain instrument (name unknown) did make an assault on Pearl Holland, and did then and there attempt to procure a miscarriage by forcing and thrusting the said instrument into her body and womb, and in said attempt to produce the miscarriage caused the said Pearl Holland to instantly die, whereby the said Henry Clark and Ida Clark committed the crime of murder. The second count charges that the defendants, Ida and Henry Clark, by the use of an instrument (name unknown) forced and inserted into the private parts and womb of said Pearl Holland, did attempt to procure and produce a miscarriage, thereby inflicting upon her private parts and womb a mortal wound, and the said Henry Clark and Ida Clark then and there, by the means and in the manner aforesaid, did unlawfully, feloniously, and willfully kill and slay the said Pearl Holland. Count 3 is substantially like count 2, and count 4 substantially like count 1. Plaintiffs in error were tried at the April term, 1906, of the Pike county circuit court, and both found guilty of murder, and the punishment fixed at 14 years in the penitentiary. The case was brought here on writ of error. The sufficiency of the indictment is challenged, claiming it was based upon section 3, div. 1, of the Criminal Code, found in Hurd's Revised Statutes of 1905 (page 665), which reads: ‘Whoever, by means of any instrument, medicine, drug or other means whatever, causes any woman, pregnant with child, to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother's life, shall be imprisoned in the penitentiary not less than one year nor more than ten years; or if the death of the mother results therefrom, the person procuring or causing the abortion or miscarriage shall be guilty of murder.’ It is insisted that this statute does not provide that if the death of the mother results therefrom, the person attempting the abortion or miscarriage shall be guilty of murder, but only in case a person actually causes the abortion. The statute provides that it shall be murder if the death of the mother results therefrom; that is to say, from causing or attempting to procure or produce the abortion. The word ‘therefrom’ plainly refers to the two crimes mentioned in the first part of the section, and the person who would otherwise suffer imprisonment from one to ten years shall, when death so results, be guilty of murder. The words, ‘the person procuring or causing the abortion or miscarriage,’ are obviously not intended to limit or qualify the first part of the section, but refer in a shorter form to the person so designated, in order to specify thereafter the offense in case death results; otherwise, the Legislature would have committed the anomaly of enumerating two different divisions of the crime, namely, the completed abortion or miscarriage accompanied by death and the attempted abortion or miscarriage accompanied by death, and providing a penalty for but one. The meaning contended for by plaintiffs in error is technical, and would not impress one as the natural and logical construction. The present section (enacted in 1874) is evidently the law of 1867 rewritten and very slightly modified. Section 2 of the earlier act (Laws 1867, p. 89) was as follows: ‘If any person shall, in the attempt to produce the miscarriage of a pregnant woman, thereby cause and produce the death of such woman, the person so offending shall be deemed guilty of murder, and shall be punished as the law requires for such offense.’ If the construction now contended for by plaintiffs in error be the correct one, then under the former law a person who only attempted to produce a miscarriage and caused death could be held for murder, but if the miscarriage or abortion was complete he could not be so held. This court held in Earll v. People, 73 Ill. 329, in construing this section of the law of 1867, that a person might be held thereunder as guilty of murder for a completed abortion as well as for the attempt. In Beasley v. People, 89 Ill. 571, this court, in discussing section 3 of the present Criminal Code, said (page 576): ‘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.’' In Earll v. People, 99 Ill. 123, the indictment charged the defendant with murder in attempting to produce an abortion, and while the jury acquitted of the charge of murder, a conviction was found under that indictment for an assault with intent to produce an abortion, and no question was raised that the indictment was not drawn in proper form charging murder. In Howard v. People, 185 Ill. 552, 57 N. E. 441, the indictment charged a completed abortion and murder resulting therefrom. In considering and comparing the present statute with the statute of 1867 it is said (page 562 of 185 Ill.,page 445 of 57 N. E.): ‘We regard the language of the present statute as substantially the same as that of the former.’ Clearly, from these decisions, this court, as well as the legal profession, has construed this section, as did the trial court in this case, to mean that when death resulted either from an abortion or an attempt to produce an abortion the person responsible should be held guilty of murder. We believe that to be the fair and reasonable construction.

We are also of the opinion that under the last part of section 145 of the Criminal Code (Hurd's Rev. St. 1905, p. 703), which reads, ‘that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder,’ the plaintiffs in error, under this indictment, could be held for murder.

It is urged that there is variance between the allegations in the indictment and the proof. Deceased had been pregnant with child, and an abortion had been attempted upon her. The post-mortem examination by a physician disclosed a rent through the wall of her bladder one-third to one-half inch in diameter, caused by some instrument having been passed through the lips of the private parts along the urethra and into the bladder. Death resulted from shock or peritonitis, or both, caused by this injury. The physician who made the post-mortem examination testified that in his judgment the injury was done with a blunt instrument. On opening the womb he found a foetus of from four to five months gestation, and did not discover any injury done either to the womb or foetus. Some of the counts of the indictment charge the instrument to have been thrust into the ‘body and womb,’ and other counts into the ‘private parts and womb’ of said Pearl Holland, and it is insisted that there is fatal variance, in that the proof shows that the instrument was not thrust into the womb, but into the bladder. The testimony in the case shows that the womb in a normal female lies above the back of the bladder, and is connected with the bladder for about an inch just above the neck of the womb. The urethra is a duct leading out of the bladder, to empty it. The vagina is a canal leading to the womb, and is back of the urethra. It is about an inch from the outer edge of the private parts of the opening of the urethra and about the same distance to the opening of the vagina. The urethra starts from the vagina, and leads to the bladder. The same lips are around the vagina and urethra. From the outer edge of the private parts to the neck of the womb is from three to four inches. From the outer edge of the private parts to where the bladder begins is about two inches.

In Guedel v. People, 43 Ill. 226, in discussing the doctrine of variance, this court said (page 229): ‘It has its origin in that tenderness of the law for human life which requires that a prisoner on trial for murder shall be fully informed by the indictment of the precise nature of the charge he is called to meet.’ Further along, on the same page, it is said: ‘The mode in which the killing was accomplished is an essential part of the indictment, and if two indictments allege modes of killing so substantially unlike that the evidence necessary to sustain the one would not be admissible under the other, then they are not indictments for the same offense, in a legal sense, although they may relate to the homicide of the same person.’ As a general rule, it is sufficient to prove the acts charged in the indictment or information which are the constituent elements of the offense. If this be done, failure to prove facts alleged which are not of the substance of the offense is immaterial. Variances are regarded material in criminal cases when they mislead the defendant in making his defense, and expose him to the danger of being again put in jeopardy for the same offense. 22 Ency....