Com. v. Allen

• Decision Date: 24 May 1921
• Citation: 191 Ky. 624,231 S.W. 41
• Parties: COMMONWEALTH v. ALLEN.
• Court: Kentucky Court of Appeals

231 S.W. 41

191 Ky. 624

COMMONWEALTH v. ALLEN.

Court of Appeals of Kentucky.

May 24, 1921

Appeal from Circuit Court, Logan County.

John H Allen was acquitted on a charge of abortion, and the Commonwealth appeals. Error.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen James R. Mallory, of Elkton, and Coleman Taylor, of Russellville, for the Commonwealth.

S. R Crewdson, of Russellville, and Selden Y. Trimble, of Hopkinsville, for appellee.

SETTLE J.

The grand jury of Logan county found and returned in the circuit court of that county an indictment against the appellee, John H. Allen, accusing him of the crime of abortion. Omitting the merely formal parts of the indictment, its description of the acts constituting the crime charged is as follows:

"The said Allen * * * did unlawfully, willfully, and feloniously use a metal instrument, a spoon or sound, a more particular description of which is to the grand jury unknown, upon the body and person of his wife, Sallie Mildred Allen, who was at the time pregnant, during the period of gestation, which was well known to him, by forcing, thrusting, and inserting the said instrument into the body, private parts, and womb of the said Mrs. Allen, with the intent thereby to procure the miscarriage of said woman, all of which was over her protest, against her will, and not necessary to preserve her life, and, as a result of said acts so done with the intent and in the manner aforesaid, the miscarriage of the said Mrs. Allen was procured, the death of two unborn children was caused, and the said Mrs. Allen did miscarry. * * *"

The trial of appellee under the indictment resulted in his acquittal by the verdict of the jury, complaining of which, the ruling of the trial court in excluding certain evidence offered in its behalf, and of its refusal to grant it a new trial, the commonwealth has appealed.

The crime of abortion is defined and made a felony by Kentucky Statutes, § 1219a, subsecs. 1-4; the penalty prescribed by subsection 1 being applicable where the conviction of the accused results from his committing, with the intent to procure a miscarriage, when not necessary to preserve the woman's life, the acts by which, as defined by the section, it may be effected, but without actually causing it. The penalty prescribed by subsection 2 applies where the conviction of the accused occurs by reason of his committing, with the intent to procure a miscarriage, when not necessary to preserve the woman's life, the acts prescribed in subsection 1 and the miscarriage actually results from such acts; and, in addition, causes the death of the unborn child, whether before or after quickening time. If, however, the woman upon whom the acts described in subsection 1 are committed with the intent to procure the miscarriage, when not necessary to preserve her life, should by reason thereof die, subsection 3 of the statute provides that the person offending, if convicted, "shall be punished as now prescribed by law for the offense of murder or manslaughter, as the facts may justify." By subsection 4 it is provided that the consent of the woman to the means employed to procure the abortion shall be no defense; that she shall be a competent witness in any prosecution under the statute, and for that purpose shall not be considered an accomplice.

It is apparent from the language of subsections 1, 2, and 3 of the statute, supra, that the offense denounced by each is a felony, and manifest from that of the indictment in the instant case that the acts alleged therein to have been committed by the appellee constitute the offense as defined in subsections 1 and 2, for which, if found guilty by the jury, he would have been amenable to the punishment, by way of confinement in the penitentiary, prescribed by subsection 3.

Without raising the question in the court below, or seriously arguing it here, counsel for the commonwealth contends that the indictment is not sufficient to sustain a conviction; hence the appellee was not placed in jeopardy by his trial thereunder, for which reason the judgment appealed from should be reversed, and the case remanded, with direction to the court below to set it aside and refer the case to the grand jury for the return of another and sufficient indictment against appellee. Without consuming time in discussing this contention, it is deemed only necessary to say that the indictment in form and substance sufficiently complies with the provisions of Criminal Code, § 122, subsecs. 1, 2, and section 124, subsecs. 1 to 4, inclusive, in that it is direct and certain as regards: (1) The party charged; (2) the offense charged; (3) the county in which it was committed; (4) "a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case." While the indictment does not attempt to follow the language of the statute, it omits no allegation of fact or circumstance necessary to constitute the offense therein named. Therefore it is clear that the appellee was placed in jeopardy by his trial thereunder in the court below, and that this court is powerless to reverse the judgment of that court based upon the verdict of the jury acquitting him of the crime charged. So our authority is confined to a review of such of the rulings of the circuit court on the trial as are assigned as error on the appeal and to declaring the law regarding same.

The remaining important question presented for decision by the appeal, and respecting which counsel for the appellant are most insistent, is: Was the wife of the appellee, the party injured by his alleged acts constituting the crime charged in the indictment, a competent witness for the commonwealth on his trial under the indictment? It appears from the record that the only evidence introduced on the trial of appellee in the court below was in behalf of the commonwealth, and, while it was sufficient to prove that appellee's wife suffered a miscarriage as charged in the indictment, resulting in the premature birth of two children (twins) without life, and that such miscarriage was caused by some sort of force or violence employed upon the person of Mrs. Allen, with the exception of one witness who testified as to a statement of appellee that his wife was pregnant, and, in substance, that he intended to cause her to have a miscarriage, there was little, if anything, in the evidence tending to connect him with the procurement of the abortion, which doubtless led the jury to entertain such doubt of his guilt as to cause the verdict of acquittal returned by them. It was to supply this lack of evidence, therefore, that the wife of appellee, who better than all others knew the facts regarding his guilt or innocence, was offered as a witness by the commonwealth. She was, however, excluded upon appellee's objection as a witness, and her offered testimony rejected by the trial court, to which ruling counsel for the commonwealth at the time took an exception, and thereupon entered of record an avowal that the witness Mrs. Allen, "if permitted to testify, would state that her husband [appellee], over her protest and against her will, forcibly inserted a metal instrument into her private parts, person, and body for the purpose of causing a miscarriage of her unborn child [or children], and the result of same was a miscarriage."

The antiquity of the common-law rule that neither the husband nor wife shall testify for nor against the other is so great as to render even the century of its origin well-nigh undiscoverable. It was mainly founded upon two reasons: (1) The danger of causing dissension and of disturbing the peace of families; (2) the natural repugnance in all fair-minded persons to compelling the husband or wife to be the means of the other's condemnation. It may therefore be said that the rule in question was bottomed upon a humane public policy intended to protect the sanctity of the home and happiness of the family. But the rule, like practically all others, has its salutary exceptions, one of which is that the wife may testify against the husband in a criminal or penal prosecution for an offense or attempted offense against her person.

In Comlth. v. Sapp. 90 Ky. 580, 14 S.W. 834, 12 Ky. Law Rep. 484, 29 Am.St.Rep. 405, we had occasion to pass directly on this question. Sapp was indicted for attempting to poison his wife, and upon his trial the wife was offered by the commonwealth as a witness against him; its counsel avowing that she would state that she saw the husband sprinkle a substance upon a piece of watermelon intended for her, which substance was shown by other testimony on the trial to be arsenic, a deadly poison. The trial court refused to permit her to testify, holding that she could not be a witness for any purpose. But on the appeal of the case we held that her rejection as a witness was error. The opinion, following a review of the common-law and numerous judicial decisions on the subject, declares that section 606, Civil Code of Practice, is "but declaratory of the common law," and that, notwithstanding its emphatic provisions to the effect that neither a husband nor his wife shall testify for or against each other, this rule "is subject necessarily to some exceptions, one of which is where the husband commits or attempts to commit a crime against the person of his wife."

Although in the case supra the wife had been divorced from the husband before she was offered as a witness, this fact the court held of no consequence, saying in the opinion:

"The policy upon which the rule

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