Hans v. State

• Decision Date: 29 March 1946
• Docket Number: 31992.
• Parties: HANS v. STATE.
• Court: Nebraska Supreme Court

22 N.W.2d 385

147 Neb. 67

HANS v. STATE.

No. 31992.

Supreme Court of Nebraska

March 29, 1946

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Section 28-404, R.S.1943, defining the offense of foeticide, does not require an arbitrary and technical distinction to be used between the terms 'embryo' or 'foetus.'

2. The Legislature used the terms in their ordinary and commonly accepted meaning, and when it used the term 'foeticide,' it meant the unlawful destruction of an unborn child, in ventre sa mere, in any stage of gestation.

3. Section 28-404, R.S.1943, uses the language 'to any pregnant woman with a vitalized embryo, or foetus, at any stage of utero gestation,' meaning at any stage during pregnancy.

4. Section 28-404, R.S.1943, is not violative of that part of section 14, article III, of the Constitution of Nebraska, the same being: 'No bill shall contain more than one subject and the same shall be clearly expressed in the title.'

5. Section 28-404, R.S.1943, does not deprive the accused of due process of law and is not violative of section 3, article I of the Constitution of Nebraska and section 14, article I, of the Amendments to the Constitution of the United States.

6. In charging the commission of an offense in an information, it is not necessary that the exact words of the statute be used, provided the words employed are the equivalent in meaning of those contained in the statutes.

7. The court will give the words used in the information their ordinary and commonly accepted meaning, and when viewed in this light, if the words employed mean the same thing as those found in the language of the statute denouncing the offense, the information will be upheld.

8. Instructions must be construed together, and if they correctly announce the rule applicable to the issue and the evidence, they will be upheld, even though a single paragraph, standing alone, might be faulty.

9. Harmless imperfections in single instructions are not sufficient grounds for reversal of judgment where the entire charge to the jury fairly states the law applicable to issues and evidence.

10. Ordinarily, error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.

11. In criminal cases, as in civil, the credibility of witnesses and the weight to be given their testimony are matters for the determination of the jury. It is for the jury to determine whether it is convinced beyond a reasonable doubt of the defendant's guilt, not for the reviewing court to say whether it is so convinced. A reviewing court can only inquire whether the evidence was sufficient to warrant the jury in finding the defendant guilty.

12. The fact that witness testified differently in the preliminary examination and on the trial does not require that his testimony on the trial should be rejected. His credibility is for the jury.

13. The scope of cross-examination of a witness rests largely in the trial court, and its ruling will be upheld unless an abuse of discretion is shown.

14. A new trial will not ordinarily be granted, overruling the trial court, on the ground of newly discovered cumulative evidence or evidence which is merely impeaching in character.

15. The woman on whom the abortion was committed is not an accomplice, and corroboration of her testimony is not essential.

16. In a prosecution for abortion proof of physical condition, reactions, and functional disturbances which as a matter of common knowledge denote probable pregnancy, was sufficient to justify conclusion that pregnancy, as a necessary element of the offense, was established.

17. In a prosecution under section 28-404, R.S.1943, evidence held sufficient to carry the issue of pregnancy to the jury.

Eugene O'Sullivan, Arthur J. Whalen, and Ernest Priesman, all of Omaha, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C.J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

MESSMORE Justice.

Alvin Hans was informed against and charged with the crime of foeticide under section 28-404, R.S.1943. He was convicted and sentenced to serve an indeterminate sentence of not less than one year or more than five years in the penitentiary. From the sentence so imposed, he prosecutes error.

For convenience, the plaintiff in error will hereafter be referred to as defendant.

Defendant contends that section 6 of the Nebraska Criminal Code of 1873, now section 28-404 R.S.1943, upon which the information in the instant case is grounded, was and is unconstitutional and in violation of that part of section 19, article II (now a part of section 14, article III), of the Constitution of the state of Nebraska in force when the law was passed, the same being: 'No bill shall contain more than one subject, and the same shall be clearly expressed in the title.'

Reference is made to volume 2, Complete Session Laws of Nebraska, 1866-1877, p. 647, which reads in part as follows:

'Laws of Nebraska

'Part 1.--Criminal Code

'Code of Criminal Procedure

'An Act to establish a criminal code.

'Be it enacted by the Legislature of the State of Nebraska, in manner and form following, that is to say:

'Part 1--Crimes and Offenses

* * *

* * *

'Chapter II.--Homicide and Foeticide.'

We quote the following section only:

'Sec. 6. Any physician, or other person, who shall administer, or advise to be administered, to any pregnant woman with a vitalized embryo, or foetus, at any state of utero gestation, any medicine, drug, or substance whatever, or who shall use or employ, or devise to be used or employed, any instrument or other means with intent thereby to destroy such vitalized embryo, or foetus, unless the same shall have been necessary to preserve the life of the mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case of the death of such vitalized embryo, or foetus, or mother, in consequence thereof, be imprisoned in the penitentiary not less than one nor more than ten years.'

The language of section 6, supra, is identical with the language now appearing in section 28-404, R.S.1943.

The argument advanced by the defendant is that chapter 2, subtitle of the act, supra, specifically relates to homicide and foeticide; that no place in the title of the act is the killing of a vitalized embryo referred to by the use of any appropriate descriptive language.

The words 'foeticide' and 'embryocide' are medicolegal terms, and the words 'vitalized embryo' and 'foetus', are not synonymous, but mean different things in medicine, signifying two possible stages of development after conception and before birth. The distinction between the two words, as contended for by defendant, is reflected in the following medical definitions:

An embryo is 'the rudimentary plant in the seed; the product of conception during its intrauterine existence; its first two weeks constitute the ovum stage; from the end of the 2nd to the beginning of the 8th week is the embryonal stage, and from the beginning of the 3rd month to the termination of gestation is the fetal stage.' Stedman's Medical Dictionary, 14th Ed., p. 350.

A foetus (fetus) is defined, 'The unborn young of an animal after it has taken form in the uterus; in man, the product of conception from the end of the third month to the moment of birth.' Stedman's Medical Dictionary, 14th Ed., p. 401.

Therefore, defendant contends: If the words 'foetus' and 'vitalized embryo' are not defined in the statute creating offenses, their general medical meaning and sense as applied should prevail. The offenses could or should be properly set forth in legislative enactment to inform a defendant of which offense he is charged. The statute having failed in such respect, the constitutional provision, supra has been violated.

We are not in accord with the defendant's contention. While arbitrary distinction is made by some writers between 'foetus' and 'embryo,' the distinction is not recognized in a charge of 'foeticide'. We make reference to the following legal definitions: 'Foetus. In medical jurisprudence. An unborn child. An infant in ventre sa mere.' Black's Law Dictionary, 3rd Ed., p. 794.

Foeticide (feticide) in medical jurisprudence means: 'Destruction of the fetus; the act by which criminal abortion is produced.' Black's Law Dictionary, 3rd Ed., p. 769. See, also, 1 Beck, Medical Jurisprudence, 288; Guy, Medical Jurisprudence, 133; 36 C.J.S. Feticide, p. 732.

Section 28-404, R.S.1943, uses the language: '* * * to any pregnant woman with a vitalized embryo, or foetus, at an stage of utero gestation, * * *.' The statute making the offense 'at any stage of utero gestation' means at any stage during pregnancy. See Edwards v. State, 79 Neb. 251, 112 N.W. 611. See, also, 1 C.J.S., Abortion, § 6, p. 318.

It is clear that the arbitrary and technical distinction between the terms 'embryo' and 'foetus' are not recognized by the law. The terms are practically interchangeable and refer to an unborn child, in ventre sa mere. It is obvious the Legislature used these terms in their ordinary and commonly accepted meaning, and when it used the term 'foeticide' it meant the unlawful destruction of an unborn child, in ventre sa mere, at any stage of gestation.

We conclude section 28-404, R.S.1943, is not violative of that part of the state Constitution now section 14, article III, as contended for by defendant.

The defendant advances the same argument, claiming he was denied due process of law under section 3, article I, of the state Constitution, and section 1, article XIV, of the Amendments to the Constitution of the United States. We conclude that for the reasons...