Hatchard v. State

• Decision Date: 17 March 1891
• Parties: HATCHARD v. STATE.
• Court: Wisconsin Supreme Court

79 Wis. 357

48 N.W. 380

HATCHARD

v.STATE.

Supreme Court of Wisconsin.

March 17, 1891.

Error to municipal court of Milwaukee.

An information was duly filed in the municipal court of Milwaukee against the plaintiff in error and her husband, in which it is charged that on November 20, and December 1 and 11, 1887, at the county of Milwaukee, “the said defendants, Thomas Hatchard and Nancy Josephine Hatchard, did willfully and feloniously make an assault in and upon a woman, Minnie Beardsley, she, the said Minnie Beardsley, being then and there pregnant with a child; and that the said Thomas Hatchard and Josephine Hatchard did then and there willfully and feloniously employ upon the body and womb of the said Minnie Beardsley a certain sharp instrument or instruments to this informant unknown, and did then and there willfully administer to the said Minnie Beardsley certain medicines and drugs to this informant unknown, with intent thereby then and there willfully and feloniously to destroy such child, the same not being necessary to preserve the life of such mother, the said Minnie Beardsley, and not having been advised by two physicians to be necessary for the purpose of preserving the life of such mother, the said Minnie Beardsley; by means whereof the death of the said Minnie Beardsley was produced, and whereby the said Thomas Hatchard and Nancy Josephine Hatchard did on the 12th day of December, in the year one thousand eight hundred and eighty-seven, at the said county of Milwaukee, feloniously kill and slay the said Minnie Beardsley.” Then follows an averment that Mrs. Hatchard did not then and there act by and under the coercion of her husband. On this information Mrs. Hatchard was separately tried, and convicted of the offense charged in the information. Motions in arrest of judgment and for a new trial were denied, and she was sentenced to imprisonment in the state-prison for the term of four years. The testimony and rulings of the court on the trial are sufficiently stated in the following opinion. She has sued out a writ of error to obtain a review and reversal of the judgment.V. W. Seely, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State.

LYON, J., ( after stating the facts as above.)

The exceptions deemed material to a determination of the case will be considered and determined in their order.

I. On the trial, counsel for Mrs. Hatchard objected to the admission of any testimony, for the alleged reasons that the information states no offense, and is void for uncertainty and duplicity. The objection was overruled. The information is drawn under section 4352, Rev. St., which reads as follows: “Any person who shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.” We think the information charges an offense under that statute. It avers every fact essential to constitute the crime against which the statute is aimed, substantially in the language of the statute, and with such degree of certainty that the court has no difficulty in pronouncing judgment upon the conviction of Mrs. Hatchard according to the right of the case. This is sufficient. Rev. St. §§ 4658, 4669. Much of the argument of counsel against the sufficiency of the complaint is based upon the claim that the information charges three distinct offenses in three counts, to-wit: (1) Assault; (2) causing an abortion; and (3) manslaughter in the first degree. This, we think, is an entire misapprehension of the character of the information. It charges Dr. Hatchard and his wife with the felonious killing of Minnie Beardsley by the means therein stated; and the statute makes such killing manslaughter in the second degree. Hence the information charges that the accused committed that degree of felonious homicide. The charge of assault can only signify that the means employed to destroy the unborn child was a felonious assault. It is an unnecessary averment, incapable of benefit to the prosecution or mischief to the accused, and, under a familiar rule, may be rejected as surplusage without impairing the sufficiency of the information. This information is modeled after that in State v. Dickinson, 41 Wis. 299, which passed the scrutiny of able counsel and of this court without challenge. The two informations are substantially alike. We hold the information in the present case sufficiently charges an offense under section 4352, and the trial court properly overruled the objection to the admission of testimony under it.

II. The testimony tended to prove that Minnie Beardsley, who was then with...