Johnson v. People

• Citation: 80 P. 133,33 Colo. 224
• Parties: JOHNSON v. PEOPLE.
• Decision Date: 06 March 1905
• Court: Colorado Supreme Court

80 P. 133

33 Colo. 224

JOHNSON v. PEOPLE.

Supreme Court of Colorado

March 6, 1905

Error to District Court, Pueblo County; N. Walter Dixon, Judge.

L Carrie Johnson was convicted of procuring the miscarriage of a pregnant woman, and brings error. Affirmed.

The defendant was tried and convicted for a violation of the second clause of a statute which reads: 'Every person who shall, wilfully and maliciously, administer, or cause to be administered, to, or taken by, and person, any poison or other noxious or destructive substance of liquid, with the intention to cause the death of such person, and being thereof duly convicted, shall be punished by confinement in the penitentiary for a term not less than one year, and not more than ten years; and every person who shall administer or cause to be administered, or taken, any such poison substance or liquid, or who shall use, or cause to be used and instrument of whatsoever kind, with the intention to procure the miscarriage of any woman then being with child, and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years in the penitentiary and fined in a sum not exceeding one thousand dollars; and if any woman by reason of such treatment shall die, the person or persons administering or causing to be administered such poison, substance or liquid, or using or causing to be used any instrument as aforesaid, shall be deemed guilty of murder, and if convicted, be punished accordingly, unless it appear that such miscarriage was procured or attempted by or under advice of a physician or surgeon with intent to save the life of such woman or to prevent serious and permanent bodily injury to her.' Sess. Laws 1891, p. 122 (3 Mills' Ann. St. Rev. Supp. § 1209). The information, omitting formal parts, charges that the defendant 'unlawfully, feloniously and wilfully employed a certain instrument in and upon one Pearl Gordon, who was then and there a woman pregnant with child, and did then and there unlawfully, feloniously and wilfully introduce said instrument into the womb of the said Pearl Gordon, with intent to produce and procure a miscarriage of the said Gordon, the defendant then and there knowing that the use of said instrument would accomplish the said purpose, and it not being then and there necessary to produce such miscarriage for the preservation of the life of the said Pearl Gordon, by reason whereof the said Pearl Gordon languishing,' etc., 'died.'

In an information or indictment it is only necessary to negative such exceptions and provisos mentioned in the statute defining the crime charged, as are descriptive of the offense, without reference to the position or location of the same in the statute.

W. B. McNeel, C. W. Bramel, and H. E. Robinson, for plaintiff in error.

N. C. Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

CAMPBELL J.. (after stating the facts).

When the defendant lodged the record here and applied for a supersedeas, it was discovered that her bill of exceptions, incorporated in the transcript, was so imperfect and incomplete that, under our rules, some of the errors relied upon could not be considered. Acting upon the court's suggestion, her counsel asked and was granted leave to withdraw the record for correction. Upon application below, some of the defects were cured; but the trial judge refused to insert in the bill certain recitals relating to the conduct of the trial, to his treatment of defendant's counsel, his manner of ruling on objections made by the latter, and to certain of his remarks calculated to disparage them in the eyes of the jury, and a general course of conduct on his part throughout the trial which evidenced, as defendant says, a strong feeling against her. Failing in the attempt to get into the bill of exceptions the desired statements, defendant seeks now, by affidavits, to supplement the same, and asks us to regard as incorporated therein matters and things which the affidavits say occurred at the trial, but which the presiding judge virtually denies, by refusing, at defendant's request, to insert them. Where, as here, the judge makes a return with respect to such matters, and settles and authenticates a bill of exceptions, the statute permitting a bill to be made by affidavits when the judge refuses or neglects to allow or sign it does not apply. Holland v. People, 30 Colo. 94, 103, 69 P. 519. It follows, therefore, that defendant cannot be heard upon some of the objections, relating to the treatment of her counsel by the judge, and to his alleged unfairness to her, on which she strongly relies, because there is nothing in the only properly authenticated record before us on which they rest. This reference is pertinent at the outset, and will serve to explain the absence from the opinion of discussion of some of the questions argued in defendant's briefs. We proceed now to consider the objections which are grounded on the record.

1. The information is assailed upon various grounds. First, it is contended that 'maliciously,' in the first, applies to the crime defined in the second, clause of the statute, and, since 'maliciously,' or its equivalent, is not in the information, the pleading is fatally defective. 'Maliciously' does apply to the crime defined in the first clause, which consists in the administering of poison with intent to cause death, but is in no sense applicable to the administering of poison, etc., or using instruments, with intent to produce the miscarriage of a woman pregnant with child, which is the crime defined in the second clause. This has been expressly ruled in Dougherty v. People, 1 Colo. 514, 517. The information therefore is not defective for the omission of that word.

2. It is further said that, inasmuch as this statute makes the producing of a miscarriage murder if the woman dies, malice is an essential ingredient thereof, though not expressly so declared therein, because, under our general statute relating to murder, malice is an essential element of every murder, however committed. The proceeding against defendant was not under the general murder statute, but was based upon this particular statute which makes the doing of the act therein prohibited, in a certain contingency, murder (which, of course, is murder of the second degree), and it is sufficient to set forth the offense in the language of the statute, which was done; and proof that the act prohibited thereby was committed establishes the ingredient of malice, even if that element should be held essential.

3. A more serious objection urged is that since this statute contains at least two, and probably three, special grounds of justification for the acts generally prohibited, it is necessary thereunder to negative all these exceptions in the indictment or information, which was not done in this case. That these exceptions do not refer to the first clause is manifest, for that clause defines the offense or administering poison etc., with intent to cause death, and it would be absurd, as well as inconsistent, to say that such offense is to be excused for the reasons contained in the proviso; hence we must assume that the General Assembly never intended by one clause of a section to nullify another clause of the same section. It will be observed that the matters of justification are contained in the last sentence of the section, beginning with the word 'unless'; and this substantive clause is in the nature of a proviso to the effect that, if it shall appear that the miscarriage was procured in the circumstances therein specified, there is no crime. The defendant contends, and the Attorney General is disposed to concede, that in this proviso or substantive clause there are three distinct justifications for the act prohibited in the antecedent clause: (1) If the act is done by or under the advice of a physician or surgeon; (2) with intent to save the life of the woman; or (3) to prevent serious and permanent bodily injury to her.

The general rule, as usually announced, is that exceptions and provisos in the enacting clause of a statute must be negatived, and such as are not in the enacting clause need not be negatived; the latter being matters of defense. 10 Enc. Pl. & Pr. 495. The rule thus stated is sufficiently precise to cover most of the cases, but we apprehend that the more accurate expression of the doctrine is that only such exceptions and provisos need be negatived as are descriptive of the offense, without reference to the position or location of the same in the statute. In State v. Miller, 24 Conn. 527 it was held that it is immaterial whether the proviso or exception be contained in the enacting or subsequent clause, if it only follow a general prohibition; but, if there be no general prohibition in the description of the offense, then it is only a limited prohibition, and the prosecutor in the latter case must allege the circumstances necessary to show that the thing prohibited has been done. Substantially the same doctrine was announced in the leading case of United States v. Cook, 17 Wall. 168, 21 L.Ed. 538, followed by us in Packer v. People, 26 Colo. 306, 57 P. 1087, wherein it was said: 'Where a statute defining an offense contains an exception in the enacting clause of the statute which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; but, if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately...