Hays v. State

• Decision Date: 25 June 1874
• Citation: 40 Md. 633
• Parties: SUSAN HAYS v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

40 Md. 633

SUSAN HAYS v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

June 25, 1874

APPEAL from the Circuit Court for Washington County.

Susan Hays and John McCauley were indicted under the Act of 1868 ch. 179, as follows:

STATE OF MARYLAND,

Washington County, to wit:

The jurors of the State of Maryland, for the body of Washington County, do, on their oath, present that Susan Hays, late of Washington County aforesaid, white woman, and John McCauley late of the county aforesaid, yeoman, on the first day of August, in the year of our Lord, eighteen hundred and seventy-three, at Washington County aforesaid, unlawfully and wilfully did cause to be used by Louisa Ross, then and there being a pregnant woman, a large quantity of a certain substance, medicine and noxious and poisonous drugs and preparations, to the jurors aforesaid unknown, for the purpose of causing the miscarriage and abortion of her, the said Louisa Ross, pregnant with child as aforesaid, they, the said Susan Hays and John McCauley, not being then and there regular practitioners of medicine, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Susan Hays and John McCauley, on the said first day of August, in the year eighteen hundred and seventy-three, at Washington County aforesaid, unlawfully and knowingly, did cause to be used by Louisa Ross, then and there being a pregnant woman, a certain means, to wit, the taking of a certain poison, drug, mixture, preparation and medicine to the jurors aforesaid unknown, for the purpose of causing a miscarriage and abortion upon the person of her the said Louisa Ross, pregnant with child as aforesaid, they the said Susan Hays and John McCauley, not being then and there regular practitioners of medicine, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Susan Hays and John McCauley, on the said first day of August, in the year eighteen hundred and seventy-three, at Washington County aforesaid, unlawfully and knowingly, did cause to be used by Louisa Ross, then and their being a pregnant woman, a certain means, to wit, the taking of a large quantity of a certain poison, drug, medicine and preparation, to the jurors aforesaid unknown, for the purpose of causing a miscarriage and abortion of the said Louisa Ross, being then and there pregnant with child as aforesaid, they, the said Susan Hays and John McCauley, not being then and there regular practitioners of medicine, supervising cases of abortion, occurring spontaneously as the result of accident, or from any natural cause, and not being regular practitioners of medicine, producing an abortion upon the said Louisa Ross, after consulting with one or more respectable physicians, and not being satisfied that the f tus was dead, or that no other method would secure the safety of the said Louisa Ross, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Susan Hays and John McCauley, on the said first day of August, in the year eighteen hundred and seventy-three, at Washington County aforesaid, unlawfully and knowingly, did use upon Louisa Ross, then and there being a woman pregnant with child, a certain means, to the jurors aforesaid unknown, for the purpose of causing a miscarriage and abortion of her, the said Louisa Ross, being then and there pregnant with child as aforesaid, they, the said Susan Hays and John McCauley, not then and there being regular practitioners of medicine, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

John McCauley was not taken, Susan Hays being taken, demurred to the indictment. The Court, (ALVEY and MOTTER, J.,) overruled the demurrer, and the traverser thereupon pleaded "not guilty." At the trial five exceptions were taken by the traverser; these are sufficiently set out in the opinion of this Court. The paper to the admission of which in evidence the first exception was taken, is as follows:

" Liew, start to Leightersburgh to-morrow at three o'clock, and I will meet you between bill Huyett's and chewsville, and I think that will be the best way for us to go. Be shure and start at just three, so I will meet you at the rite place.

From you no Who."

The jury rendered a verdict of guilty, and the traverser appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE and GRASON, J.

Hy. Kyd Douglas, for the appellant.

The indictment does not sufficiently negative the proviso of the Act of 1868, chap. 179, which is an amendment of the Act of 1867, chap. 185. The first, second and fourth counts charge, that the traversers were not regular practitioners of medicine, and that is all they say about the proviso. This is not sufficient, for if they had been regular physicians, it would have been no excuse, unless the other requirements set out in the proviso had been complied with.

The third count attempts to remedy the omission of the other counts, but it fails to do so. It is not quite as defective as the other three, yet it is fatally so. Rawlings vs. The State, 2 Md., 201; State vs. Nutwell, 1 Gill, 54; Rex vs. Jarvis, 1 East, 647; Commonwealth vs. Hart, 2 Criminal Lead. Cases, 1, and Notes; State vs. Bode, 7 Gill, 326; Rex vs. Pemberton, 2 Burr., 1037; U.S. vs. Cooke, 17 Wall., 168.

But if it were not necessary to negative the proviso, the result is the same. If an indictment undertakes to recite a statute, and misrecites it, it is fatal. Rawlings vs. State, 2 Md., 201; Bacon's Abridgment, " Statutes."

The paper to the admission of which in evidence, the first exception was taken, was not sufficiently identified to go to the jury for their speculations. The old lady, by whom its identity was established, could neither read nor write. This paper was found in a box, in an open, unlocked drawer, after Louisa had left home, and it went from hand to hand, not appearing how it got into the court-house.

But if it were the same piece of paper which John McCauley gave Louisa, did he write it? His name is not signed to it, and there was no attempt to prove his handwriting. It was not enough for the Court to tell the jury, that they were to consider it as evidence against Mrs. Hays, if they believed it to be the same piece of paper given by McCauley to Louisa Ross.

But conceding that the identity of the paper was established, was it admissible when offered as evidence against the appellant? It was a transaction out of her presence, and neither at that time nor ever afterwards brought to her knowledge.

The Court below said, the evidence was admissible to shew the circumstances under which she left her home, and by whom induced to leave it. But how does that reflect upon Mrs. Hays? It does not implicate her; for instead of pointing to her guilt, the paper itself shews that it was not the intention of the person who wrote that note, to take Louisa to Hagerstown, but to Leitersburg.

Could there have been any conspiracy, as was afterwards insisted upon at the trial, between McCauley and Mrs. Hays at that time? Clearly not. But if such was the supposition or theory of the State, the conspiracy should have been proved before this testimony was admitted.

At the time this paper was offered by the State and admitted, there was not only no evidence of conspiracy between McCauley and Mrs. Hays (for up to that point her name had not been mentioned,) but there was no proffer by the State to prove such conspiracy. And yet, with the explanation set forth in the bill of exceptions, that piece of paper, pregnant with prejudice and suspicions, was permitted to go to the jury as evidence against a party who had never heard of it. 1 Greenl. Ev., sec. 111; 3 Greenl. Ev., secs. 92, 94; 2 Bishop's Crim. Prac., 190, 192; 1 Whart. Crim. Law, (6 th Ed.,) secs. 696, 702, 706; 3 Philips' Evd., Cowan & Hill's notes, 177, et seq.; Commonwealth vs. Crowninshield, 10 Pick., 497; People vs. Parish, 4 Denio, 153; Clawson vs. State, 14 Ohio, 234; Commonwealth vs. Brown, 14 Gray, 419; State vs. George, 7 Iredell, 321; Reg. vs. Murphy, 8 C. & P., 297; Reg. vs. Shellard, 9 C. & P., 277; 1 Taylor's Evd., 527, 529; Roscoe's Crim. Ev., 383, 387.

The testimony to the admission of which the second exception was taken, was equally objectionable. It is not pretended that Mrs. Hays ever knew anything of this conversation, it was not shown or pretended, that she or McCauley ever knew each other at that time, or that she had then ever heard of Louisa Ross.

Up to this point, there was nothing in the case except the joint indictment, to indicate or establish a conspiracy. Nothing but assertion.

The State's attorney asked one of his witnesses "what character of house does Susan Hays keep?" to which he replied, that he knew nothing, except from general reputation, and that was, that she kept a house of ill-fame. This was an indirect effort to notify the jury as a matter of prejudice against the traverser, that she was a woman of bad character.

The only issue which the State was called upon to maintain, was that raised by the indictment, and no matter how good the previous character of the traverser may have been, it would not have saved her if the allegations of the indictment were clearly proven. Upon what principle, then, was evidence of her bad character...