Dougherty v. People

• Decision Date: 01 February 1872
• Citation: 1 Colo. 514
• Parties: DOUGHERTY v. THE PEOPLE.
• Court: Colorado Supreme Court

1 Colo. 514

DOUGHERTY v. THE PEOPLE.

Supreme Court of Colorado

February, 1872

Error to District Court, Arapahoe County.

Mr. L C. ROCKWELL and Mr. G. W. MILLER, for plaintiff in error.

Mr. M A. ROGERS, district attorney, first judicial district, and Mr. CLINTON REED, district attorney, second judicial district, for the people.

BELFORD J.

The indictment in this case contains three counts. The first alleges that the defendant, on the 10th day of September 1870, at the county of Clear creek, unlawfully, willfully and feloniously, did administer to, and cause to be taken by, one Maria Casey, she, the said Maria, being then and there pregnant with child, a large quantity of a certain noxious and destructive substance called boneset, with intent thereby, then and there, to procure a miscarriage of the said Maria, etc.

The second alleges that the defendant, unlawfully, willfully and feloniously, did cause to be taken by one Maria Casey, she the said Maria, being then and there pregnant with child, a certain noxious substance called boneset, and other noxious and destructive substances, administered to the said Maria by the said Daniel Dougherty, etc.

The third count differs in no important particular from the first. In the court below the prisoner's attorney moved to quash the indictment, on the ground that boneset was not a destructive or noxious substance within the contemplation of the statute. This motion was overruled, and this ruling of the court is assigned for error. We are unanimously of the opinion that the character and capabilities of any drug, specified in an indictment as having been used in the production, or attempted production, of a crime, are questions of fact to be determined by the jury upon the evidence before them. To hold otherwise, would be to require that the presiding judge, in all trials involving charges of poisoning, should be an expert in the science of toxicology, or thoroughly familiar with the active and inert properties of all drugs, herbs or minerals, which are, or might be, used in the perpetration of a crime.

This, indeed, might be regarded as a very onerous requirement, and yet, if of easy fulfillment, would certainly be open to the objection that the judge would thereby become master both of the law and the fact. Independent of this, however, we are of the opinion that an indictment which follows the language of the statute is sufficient.

In the case of Curtis v. The State, 2 Ind. 618, the court say, that it is not necessary to name the kind of drug, and if it is named, the proof need not correspond. See, also, Vawter v. The State, 7 Blackf. 592; and Crichton v. The People, 6 Park. Cr. 369. In the case of Rex v. Philips, 3 Camp. 73, the defendant was charged with administering to a pregnant woman a decoction of a certain shrub called savin. On the trial the prisoner's counsel objected, that, unless the shrub shown in the evidence was savin, there was no evidence that the mixture was 'noxious and destructive.' LAWRENCE, J., said: 'In an indictment on this clause of the statute, it was improper to introduce these words; and although they are introduced, there is no necessity to prove them. It is immaterial whether the shrub was savin or not.' We think there was no error in the overruling of the motion to quash.

The section of the statute on which this indictment is founded reads as follows: 'Every person who shall willfully and maliciously administer, or cause to be administered to or taken by any person, any poison or other noxious or destructive substance or liquid, with intention to cause the death of such person, and being thereof duly convicted, shall be punished by confinement in the penitentiary for a term not less than one year and not more than ten; and every person who shall administer or cause to be administered or taken any such poison, substance or liquid, or who shall use or cause to be used any instrument, of whatever kind, with intention to procure the miscarriage of any woman then being with child, and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years in the penitentiary, and fined in a sum not exceeding one thousand dollars. And if any woman, by reason of such treatment, shall die, the person or persons administering, or causing to be administered, such poison, substance or liquid, or using or causing to be used any instrument aforesaid, shall be deemed guilty of man slaughter,' etc. Crim. Code, s 42. From an examination of this section, it will be observed that the first clause applies to cases of poisoning as popularly understood; that is, to cases when a person, desirous of destroying the life of another, willfully and maliciously administers the poison or other destructive substance, against the consent of the person taking the same. For instance, when a servant girl, designing and intending to take life, should place arsenic in coffee; and the words 'malicious' and 'willful' applies to poisonings of this kind, and not to cases of abortion. The next clause applies purely to cases of the nature of the one undergoing investigation.

The acts sought to be prohibited and the crime sought to be punished, are the using of noxious substances, or instruments with intent to produce miscarriage. It is not necessary that the miscarriage should take place-that is, that the administering of the drugs or the use of the instrument should be followed by the expulsion of the foetus. That is not necessary to constitute the crime. It is the administering the noxious substance or the use of the instrument with intent to produce miscarriage that makes up the crime-and as to the intent, it may be remarked that it is a wellsettled rule of law that a sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of his own acts. If, therefore, one voluntarily or willfully does an act which has a direct tendency to destroy another's life, the natural and necessary conclusion from the act is, that he intended so to destroy such life. So, if the direct tendency of the willful act is to do another some great bodily harm, and death in fact follows as a natural and probable consequence of the act, it is to be presumed that he intended such consequences, and he must stand legally responsible for them. So when a physician inserts into the womb of a woman pregnant with child, instruments calculated to produce irritation and serious derangement of the female economy, and abortion follows, the intention to produce that result is a necessary conclusion from the act. So where drugs regarded as abortives are administered to a pregnant woman whose general health is good and requires no medicine, and said drugs so administered are calculated to produce serious disturbance in her system, and miscarriage is thereby superinduced, it may be presumed that the drugs so applied were designed and intended to produce that result. The intention may be rightly inferred from the character of the means employed. We have said thus much as preparatory to the consideration of the instructions given by the court below to the jury, and which are assigned for error. Over the prisoner's objection, the court gave the following instructions: 'If the jury believe from the evidence that the prisoner administered or caused to be taken by Maria Casey, named in the indictment, any noxious or destructive substance or liquid with intent to procure a miscarriage of said Maria Casey, then the jury should find the said defendant guilty. It must appear, however, in order to such conviction, not only that the prisoner gave such drug, or substance, or liquid, but that it was actually taken into the person of said Maria Casey. It will suffice, however, that prisoner procured and gave the drug or substance to said Maria with the intent named, and that she afterward took and swallowed such drug or substance, or some portion of it. And it is not necessary in order to be noxious and destructive, within the meaning of the statute, that such drug should be poisonous, as the term is commonly understood, or should be capable of actually producing the miscarriage. It will be sufficient if, upon the consideration of all the testimony, it shall appear to the jury that such drug, so administered (if any), is unwholesome and might probably occasion injury or derangement of the system to a woman pregnant with child.'

In determining the correctness of this instruction it must be borne in mind that the act of miscarriage is not necessary to the gist or completeness of the crime. The crime sought to be punished is the administering of a poison, or noxious or destructive substance or liquid, with the intent to produce miscarriage. A person indicted under a statute for administering a drug, or doing some other like act, with intent to procure an abortion, may be convicted, not alone when the proofs show an unsuccessful attempt, but equally when they show an attempt successful; that is, show an abortion actually committed. 2 Bishop's Crim. L., s 10. What then is a poisonous, noxious and destructive substance in the contemplation of this act? A poison is commonly defined to be a substance which, when administered in small quantity, is capable of acting deleteriously on the body; and, in popular language, it is confined to substances which destroy life in small doses. It is obvious, says a learned writer, that the above definition is too restricted for the purposes of medical jurisprudence. It would, if admitted, exclude a large class of substances, the poisonous properties of which cannot be disputed, as for example the salts of copper, tin, zinc, lead and antimony, which, generally speaking, act only as poisons when...