Eggart v. State

• Decision Date: 05 November 1898
• Parties: EGGART v. STATE.
• Court: Florida Supreme Court

25 So. 144

40 Fla. 527

EGGART v. STATE.

Florida Supreme Court

November 5, 1898

Error to criminal court of record, Escambia county; A. C. Blount Jr., Judge.

Gus A Eggart was convicted of crime, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. In a prosecution for the crime defined by section 2618 of the Revised Statutes it is immaterial whether the female was actually enceinte or not, and it is unnecessary to allege or prove such fact; and when an information or indictment charging such crime follows the language of the statute it is sufficient.

2. An indictment, or count in an indictment, that sufficiently charges a crime, but that charges it with a continuendo, the continuendo clause thereof may properly be rejected as surplusage when the offense charged is not a continuing one and when such rejection leaves the indictment intact, and otherwise unobjectionable.

3. Under section 2893, Rev. St., it is not error to refuse to quash an indictment or information upon the ground that it charges several distinct offenses in separate counts thereof unless such indictment is so vague, indistinct, and indefinite as to mislead the accused, and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

4. It is within the sound discretion of the trial court whether it will or not require the prosecutor to elect upon which of several counts in an indictment he will try the accused; and where the various counts are properly joined therein, and a conviction can legally be sustained upon any one, or upon all of such counts combined, it is proper to refuse to require such an election.

5. Medical works, of however standard and approved authority on the subjects to which they relate, cannot be read or introduced before juries as independent, substantive, or affirmative proof; but this rule is subject to the exception that specified books may be introduced in rebuttal to contradict a witness who has testified to having derived therefrom teachings that they do not contain, or whose teachings are substantially different from that testified to.

6. Where a single assignment of error is made to embrace allegations of error in the giving or refusal to give more than one instruction asserting distinct propositions of law, an appellate court will go no further in the consideration of such an assignment, after it has ascertained that there was no error in giving or refusing to give any one of the several instructions thus aggregated under the one assignment, but will then adjudge such assignment of error to be not well taken.

7. Except in cases of murder in the first degree, where a majority of the jury may, by a recommendation to mercy in their verdict, commute the penalty from death to life imprisonment, trial juries, under the laws of Florida, have no concern whatever with the penalties to be imposed for crime; and it is therefore not improper for trial judges to refuse to inform or instruct the jury as to what penalties the laws prescribe for any given crime, or to refuse to permit counsel to discuss the same in their arguments to the jury.

8. Under the provisions of chapter 4026, Laws 1891, where the primary penalty imposed by the judge upon conviction of any crime consists only of a fine, or of a fine and costs of prosecution, the alternative penalty of imprisonment for nonpayment of such fine and costs should be in the county jail, and not in the penitentiary.

COUNSEL Liddon & Eagan, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

At the May term, 1897, of the criminal court of record for Escambia county, upon information filed by the county solicitor, Gus A. Eggart, the plaintiff in error, as defendant below, was tried and convicted of the crime of unlawfully administering drugs and other noxious things with the intent to procure a miscarriage, and from the sentence imposed seeks reversal by writ of error.

The information upon which the defendant was tried and convicted, omitting its caption, is as follows:

'Be it remembered that E. D. Beggs, acting county solicitor for the county of Escambia, prosecuting for the state of Florida in said county, being present in our said criminal court of record in and for the said county of Escambia, on the 14th day of May, A. D. 1897, under oath information made, and gave the court to be informed and understand, that Gus A. Eggart, late of the county of Escambia aforesaid, in the state aforesaid, laborer, on the 18th day of February, in the year of our Lord 1897, and on divers others days and times between that day and the 9th day of March, A. D. 1897, with force and arms, at and in the county of Escambia aforesaid, did unlawfully advise and cause to be taken by Rosale Rauch, a woman, certain drugs, medicines, and other noxious things, to wit, pills, known as 'pennyroyal pills,' and a liquid known as fluid 'extract of cotton root,' with the intent of him, the said Gus A. Eggart, then and there thereby to procure miscarriage of her, the said Rosalie Rauch, in consequence whereof the said Rosalie Rauch did not die; against the form of the statute in such case made and provided, to the evil example of all others in like cases offending, and against the peace and dignity of the state of Florida.

'And the said E. D. Beggs, acting county solicitor for the county of Escambia, prosecuting for the state of Florida in said county, being present in our said criminal court of record in and for the said county of Escambia, on the 14th day of May, A. D. 1897, under oath information made, and further gave the court to be informed and understand, that the said Gus A. Eggart, at and in said county and state, on the 18th day of February, A. D. 1897, did unlawfully advise and cause to be taken by the said Rosalie Rauch, a woman, certain noxious things, to wit, pills, composed of iron, sulphate, and aloes, with a coating of sugar, with the intent of him, the said Gus A. Eggart, thereby then and there to procure miscarriage of her, the said Rosalie Rauch, in consequence whereof the said Rosalie Rauch did not die; against the form of the statute in such case made and provided, to the evil example of all others in like cases offending, and against the peace and dignity of the state of Florida.

'And the said E. D. Beggs, acting county solicitor for the county of Escambia, prosecuting for the state of Florida in said county, being present in our said criminal court of record in and for the said county of Escambia on the 14th day of May, A. D. 1897, under oath information made, and further gave the court to be informed and understand, that the said Gus A. Eggart, at and in said county and state, on the 4th day of March, A. D. 1897, did unlawfully advise and cause to be taken by the said Rosalie Rauch, a woman, a certain noxious thing, to wit, fluid extract of cotton root, with the intent of him, the said Gus A. Eggart, thereby then and there to procure miscarriage of her, the said Rosalie Rauch, in consequence whereof the said Rosalie Rauch did not die; against the form of the statute in such case made and provided. * * * Wherefore the said E. D. Beggs, acting county solicitor as aforesaid, prays the advice of the said court in the premises, and that the said Gus A. Eggart may be arrested and held for trial under the foregoing information, and that a capias may issue forthwith for his arrest.'

Before arraignment the defendant moved the court to quash the information on the following grounds: '(1) The information is vague, indefinite, and uncertain, and charges no offense against the laws of the state of Florida. (2) The information fails to charge an offense against the laws of the state of Florida, in this: that it does not charge that the said Rosalie Rauch, in the information named, was pregnant, or that she was with child, or that she was quick with child. (3) The information charges more than one offense in the same count, and charges different offenses in different counts of the same. (4) The information is void for the reason that the court had no legal power or jurisdiction to appoint E. D. Beggs an acting county solicitor, and said E. D. Beggs had no jurisdiction, power, or authority to officially sign said information.'

The ruling of the court denying this motion is the first assignment of error. In support of this assignment of error it is chiefly contended here that the information should have alleged, not only that the woman was pregnant but that she was quick with child; and it is argued that at the common law it was no crime to procure the miscarriage of a woman with her consent, unless she was in that advanced state of pregnancy technically known as being 'quick with child.' Such undoubtedly was the common law. Smith v. State, 33 Me. 48; State v. Cooper, 22 N. J. Law, 52; Com. v. Parker, 9 Metc. (Mass.) 263; Tayl. Med. Jur. (12th Am. Ed.) p. 549, and cases cited. But our statute (Rev. St. § 2618) under which the conviction was had has changed all this, and is as follows: 'Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman does not die in consequence thereof, be punished by imprisonment in the state prison not exceeding seven years, or by fine not exceeding one thousand dollars.' This statute is substantially the same as the statute of the state of Massachusetts (Pub. St. Mass. 1882, p. 1166, § 9), and Massachusetts adopted it...