Fitch v. Commonwealth
| Decision Date | 30 October 1942 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Fitch v. Commonwealth. |
3. Criminal Law. — The common law rule that abortion is "misdemeanor" when committed after foetus has become animated or previously thereto without woman's consent was changed in Kentucky by passage of statute defining offense of abortion and making it a "felony" (KRS 435.040, 436.020).
4. Criminal Law. — An attempt to produce abortion at any stage of woman's pregnancy or with reason to believe that pregnancy exists by administering drugs or any substance, using instruments, or any means whatever, is made a "felony" by statute, though miscarriage does not result (KRS 435.040, 436.020).
5. Abortion. — In trial for abortion, weight and sufficiency of prosecuting witness' testimony, corroborated by her friend's testimony, was for jury (KRS 435.040, 436.020).
6. Abortion. — In trial for abortion, prosecuting witness' testimony as to operation performed on her by defendant physician when witness was pregnant, with intent to produce miscarriage, pursuant to agreement between them, was sufficient to take to jury question of defendant's guilt and sustain conviction (KRS 435.040, 436.020).
7. Criminal Law. — Where affidavit of defendant's bondsman in support of motion for new trial on ground of newly discovered evidence after conviction did not show that woman whose statements were set forth in affidavit was unavailable as witness during period intervening between return of indictment in April and trial of case in following January, court was justified in denying motion for lack of diligence.
8. Criminal Law. — The granting of new trial is matter of judicial discretion.
9. Criminal Law. — In trial for abortion, charged in indictment to have been committed "then and there" at given time, expression "then and there" in instruction to find defendant guilty, if jury believed from evidence beyond reasonable doubt that prosecuting witness' miscarriage was not "then and there" necessary to preserve her life, was not prejudicial to defendant, nor erroneous (KRS 435.040, 436.020).
Appeal from Boyd Circuit Court.
A.W. Mann for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before Watt M. Prichard, Judge.
Affirming.
In April, 1941, the grand jury of Boyd county, Kentucky, returned an indictment against the appellant, Dr. Fitch, accusing him of the crime of abortion, as same is defined and made a felony by Kentucky Statutes, Section 1219a, subsections 1, 2, 3 and 4 (Kentucky Revised Statutes, Sections 436.020 and 435.040).
Omitting the merely formal parts of the indictment, its description of the acts constituting the crime charged is as follows, to-wit:
"That on the 10th day of February, 1941, * * * one Ruby Scott, a woman, was pregnant with child, the exact period and state of gestation being unknown to the grand jurors, but said Ruby Scott being advanced in a state of pregnancy about three months; and said defendant then and there having reason to believe and knowing that said Ruby Scott was then and there pregnant with child, did then and there unlawfully, wilfully and feloniously, with the intent to procure a miscarriage of said Ruby Scott, use an instrument and/or instruments in and upon said Ruby Scott, the name and/or names of which instrument or instruments are to the grand jury unknown * * * by then and there inserting said instrument and/or instruments upon, in, and against the vagina, uterus and private parts of said Ruby Scott; the grand jurors further state that such miscarriage and such using of said instrument and/or instruments in and upon the said Ruby Scott was not then and there necessary to preserve the life of said Ruby Scott; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky."
It should be noted that this indictment alleges every material fact essential to the offense as defined by the statute under which it was found, including that of the non-necessity of the operation, performed with the intent to procure the miscarriage of the pregnant woman, to save her life, with the burden of proof to establish such non-necessity for saving her life resting on the prosecution. However, such absence of necessity to save life may be proven by circumstantial evidence, as by showing (as was here done) the woman was in normal condition when the medicine was administered to her or the operation was performed to produce the miscarriage and such evidence is sufficient to raise the inference, and on which to find the fact, that the production of the miscarriage was not necessary to save the woman's life. 1 Am. Jur. Section 52, pages 150 and 151 (see note 14-19 Ann. Cas. 636).
Such proof was given by the prosecuting witness when she testified as to her good health at and prior to the time of the operation.
Upon trial on the indictment, appellant was found guilty and his punishment fixed at $500 fine and one year's imprisonment in the penitentiary.
Complaining of this judgment, he has appealed, assigning and arguing as grounds for its reversal: (1) that the court erred to the prejudice of his substantial rights in overruling his motion for a directed verdict; (2) that the verdict is flagrantly contrary to the evidence; (3) that the court further erred in overruling his motion for a new trial both as originally filed and as amended, with special reference to the showing made as to newly discovered evidence; and (4) that the instructions given were erroneous.
As helpful in our determination of the merit of two of the errors assigned, that appellant was, upon the evidence heard tending to show appellant's commission of the offense charged by the indictment, entitled to a peremptory instruction and that the instructions were erroneous in failing to give the whole law of the case, to here observe that the offense of abortion, here charged, is not the common law offense of abortion, which was a misdemeanor when committed after a woman had become quick with child, that is, when the foetus had become animated. Until that stage of development had been reached by the foetus, the law took no notice of the agency by which a miscarriage was procured, if done with the woman's consent. However, such restricted common law rule was changed in this jurisdiction by the passage of the Act of 1910, covering the several phases of this offense. By that act, Kentucky Statutes, Section 1219a, subsections 1, 2, 3 and 4 (Kentucky Revised Statutes, sections 436.020 and 435.040), the offense of abortion is defined and made a felony. Gregory's Kentucky Criminal Law, section 184; Commonwealth v. Allen, 191 Ky. 624, 231 S.W. 41, 16 A.L.R. 484.
By subsection 1 of this act, under which the present indictment was found, it is provided that:
"It shall be unlawful for any person to prescribe or administer to any pregnant woman, or to any woman whom he has reason to believe pregnant, at any time during the period of gestation, any drug, medicine or substance, whatsoever, with the intent thereby to procure miscarriage of such woman, or with like intent, to use any instrument or means whatsoever, unless such miscarriage is necessary to preserve her life; and any person so offending, shall be punished by a fine of not less than five hundred nor more than one thousand dollars and imprisoned in the state prison for not less than one nor more than ten years."
The penalty prescribed by this subsection 1 is thus made applicable where the conviction of the accused results from his committing with 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; that is, the attempt to produce an abortion at any stage of pregnancy, or where one has reason to believe pregnancy exists, either by administering drugs or any substance or by the use of instruments, or by any means whatsoever, is made a felony offense, though a miscarriage does not result (Section...
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