Gammack v. State

• Decision Date: 11 February 1937
• Docket Number: 26605.
• Citation: 6 N.E.2d 328,211 Ind. 208
• Parties: GAMMACK v. STATE.
• Court: Indiana Supreme Court

6 N.E.2d 328

211 Ind. 208

GAMMACK v. STATE.

No. 26605.

Supreme Court of Indiana

February 11, 1937

Appeal from Circuit Court, St. Joseph County; Don Pyle, judge.

Harry Taylor, Clifford V. DuComb, A. Noel DuComb, and Wm. M. Cain all of South Bend, for appellant.

Philip Lutz, Atty. Gen., and Caleb J. Lindsey, Asst. Atty. Gen., for the State.

ROLL Judge.

Appellant was charged by a grand jury indictment with the crime of abortion under section 10-105, Burns' Ind.St.1933 section 2428 Baldwin's Ind.St.1934. Appellant filed a motion to quash for the reasons (1) that the facts stated in the indictment do not constitute a public offense, and (2) that the indictment does not state the offense with sufficient certainty. This motion was overruled with exceptions. Appellant entered a plea of not guilty, a trial was had by a jury, a verdict of guilty was returned. Appellant filed a motion in arrest of judgment for the same reasons stated in his motion to quash, which was overruled. A motion for a new trial was filed and overruled. Judgment was entered on the verdict, from which appellant prosecutes this appeal and assigns as error (1) the overruling of his motion to quash, (2) the overruling of his motion in arrest of judgment, and (3) the overruling of his motion for a new trial.

We will first discuss the sufficiency of the indictment. The indictment, omitting the formal parts, is as follows:

'The Grand Jury of the County of St. Joseph, upon their oaths do present that on or about the ___ day of November, 1934, A. D., at the County of St. Joseph, in the State of Indiana, one Alexander P. Gammack did then and there feloniously, unlawfully and wilfully employ and use in the body and womb of one Leocadia Leona Borges, a pregnant woman, as the said Alexander P. Gammack then and there well knew, a certain instrument called a catheter, with the intent then and there and thereby to produce and cause the miscarriage of the said Leocadia Leona Borges, it not being necessary to cause said miscarriage to preserve life of the said Leocadia Borges in consequence of which the said Leocadia Leona Borges, then and there miscarried languished until the ___ day of November, 1934, A. D., and died in the County of St. Joseph, State of Indiana, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State of Indiana.'

Appellant attacks the indictment herein because it does not use the expression 'then and there' or other apt words, in connection with the phrase 'it not being necessary to cause said miscarriage to preserve the life of the said Leocadia Leona Borges.' It is not clear from appellant's points under this proposition the exact defect in the indictment he has in mind. From the authorities he cites, we conclude the defect is in the failure to allege that at the time the attempted abortion was committed, it was not necessary to preserve the life of the decedent. One of the cases cited in support of this proposition is State v. Williams (1853) 4 Ind. 234, 58 Am.Dec. 627. The indictment in that case was for usury, but the indictment nowhere alleged the time or place the note in question was executed. The court held that:

'Whether the sum taken as interest was or was not usurious, might depend on the lex loci where the contract was executed; and it follows that this indictment does not contain all the facts requisite to constitute the offence.'

There seems to be nothing in this case that supports appellant's contention. The indictment clearly alleges the time and place of the commission of the alleged offense. The language in the indictment follows the language of the statute and that is generally sufficient. Almost the identical language was used in the indictment in the case of Holland v. State (1892) 131 Ind. 568, 31 N.E. 359, and there held sufficient. There is no substance in appellant's objection. We think the indictment sufficient. What we have said with reference to appellant's motion to quash disposes of his motion in arrest of judgment.

The first proposition discussed by appellant in his brief relate to the refusal of the court to strike out the answer of one of the State's witnesses. The question nor the answer is nowhere set out in appellant's brief. He nowhere gives the court sufficient knowledge as to what the question was nor what the answer was so we could discuss the question with any degree of certainty. Causes for a new trial must be assigned with clearness, certainty, and particularity. Pritchett v. State (1924) 195 Ind. 404, 145 N.E. 488.

Appellant's second reason assigned in his motion for a new trial is based upon the admission in evidence of State's Exhibit No. 1, being the dying declaration of Leona Borges. Appellant contends that the corpus delicti had not been proven at the time the exhibit was offered and received in evidence. The corpus delicti in the case at bar was the unlawful procurement of a miscarriage, section 10-105, Burns' Ind.St.1933, section 2428, Baldwin's Ind.St.1934; Traylor v. State (1885) 101 Ind. 65; Hauk v. State (1897) 148 Ind. 238, 46 N.E. 127, 47 N.E. 465, and this fact may be shown by either direct or circumstantial evidence. Without setting out the evidence on this point, we may say that we have read the evidence carefully and find that the evidence was abundantly sufficient to justify the trial court in admitting the declaration in evidence. The competence of this evidence was a question for the trial court to be determined by proof relative to the declarant's state of mind at the time it was made. Williams v. State (1907) 168 Ind. 87-91, 79 N.E. 1079; Watson v. State (1878) 63 Ind. 548. The evidence shows that the declaration was made on the day of her death. That she was told by her attending physician on that day, and before she died, that she was going to...