Hensley v. State

Decision Date09 October 1886
PartiesHensley and another v. State.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Marion criminal court.Brown & Robbins and Gordon & Bailey, for appellants. W. A. Harding and Harrison, Miller & Elam, for appellee.

Niblack, J.

On the eleventh day of June, 1885, the grand jury of Marion county returned an indictment in two counts against Charles S. Hensley and John Dearbaugh for procuring an abortion upon the body of one Mary S. Hensley, a pregnant woman, in violation of the provisions of section 1923 of the Revised Statutes of 1881. The first count charged the miscarriage of the said Mary S. Hensley by the use of an instrument with intent to produce such a result. The second count charged the miscarriage of the said Mary S. Hensley by the like use of an instrument, by reason of which she afterwards died.

Upon his appearance to the indictment, Charles S. Hensley pleaded specially that on the eleventh day of February, 1885, the grand jury of Marion county found and returned into court an indictment against him in three counts; that the first count charged him, the said Charles S. Hensley, with having, on the fourteenth day of January, 1885, unlawfully, feloniously, and willfully used an instrument upon the person of Mary S. Hensley, with the intent thereby to procure and produce the miscarriage of the said Mary S. Hensley, by reason of which she, the said Mary S. Hensley, miscarried, and afterwards, on the nineteenth day of January, 1885, died; that the second count charged him, the said Charles S. Hensley, with having, at the time named, and in the same manner, and with like intent, used an instrument on the person of the said Mary S. Hensley, by reason whereof, and on account of which she, the said Mary, afterwards died; that the third count charged John Dearbaugh with having, on said fourteenth day of January, 1885, unlawfully, feloniously and willfully introduced an instrument into the womb of the said Mary S. Hensley, with intent thereby to procure and produce the miscarriage of her, the said Mary S. Hensley, whereof she, the said Mary, thereafter, on said nineteenth day of January, 1885, died, and further charged the said Charles S. Hensley with having feloniously incited, encouraged, counseled, procured, hired, and commanded the said Dearbaugh to commit the crime so perpetrated by him; that on the twelfth day of February, 1885, he, the said Charles S. Hensley, was arraigned upon said indictment, and entered a plea of “not guilty” thereto; that afterwards, on the twenty-fifth day of May, 1885, a nolle prosequi was entered as to the second count of such indictment, and all further proceedings on said count were, in consequence, discontinued; that thereupon the cause was called for trial, and a jury was impaneled and sworn to try the issues formed upon the first and third counts of said indictment; that the parties then proceeded with the trial of said cause, including the introduction of evidence, which was continued until the twenty-seventh day of said month of May; that on said last-named day, and before the argument was commenced, the prosecuting attorney asked leave to withdraw the third count of the indictment from the consideration of the jury, and to dismiss the cause as to said third count; that over his, the said Charles H. Hensley's objection, the leave thus asked for was granted, and the cause as to such third count of the indictment was accordingly dismissed; that the cause was thereafter submitted to the jury on the issue joined on the first count of the indictment; that the parties named and described in said third count of the indictment in question were the same as those named and described in the indictment in this case, and that the crime charged in such third count was based upon the same transaction constituting the alleged crime charged in this...

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