Lee v. State

• Decision Date: 31 January 1921
• Docket Number: 21256
• Court: Mississippi Supreme Court
• Parties: LEE v. STATE

86 So. 856

124 Miss. 398

LEE v. STATE

No. 21256

Supreme Court of Mississippi

January 31, 1921

1 HOMICIDE. Death of woman from abortion either "murder" or "manslaughter."

A person producing an abortion solely for the purpose of relieving the woman of the child which results in her death though produced with her consent, is guilty of either murder or manslaughter, regardless of whether the child with which the woman was pregnant was quick; of "murder" under section 1227, Code of 1906, Hemingway's Code, section 957, if the act by which the abortion was produced is eminently dangerous to, or evinces a depraved heart regardless of, human life; "manslaughter" under section 1244, Code of 1906, Hemingway's Code, section 974, if the act by which the abortion was produced is not eminently dangerous to, and does not evince a depraved heart regardless of, human life.

2 HOMICIDE. Statute prescribing form of indictment covers all homicides both statutory and common law.

Section 1431, Code of 1906, Hemingway's Code, section 1187, which prescribes the form of an indictment for homicide, covers all homicides, both statutory and common law.

3. CRIMINAL LAW. Testimony of deceased witness on committing trial may be proved although defendant charged with murder. On a trial for manslaughter the evidence of a deceased witness who testified on the committing trial may be proven, although on the committing trial the defendant was charged with murder.

4. CRIMINAL LAW. Harmless error as to statements in presence of jury no ground for new trial.

Statements in the presence of the jury by the judge and district attorney which might be prejudicial to the defendant are no ground for a new trial when the verdict returned by the jury's correct.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

F. E Lee was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

George T. Mitchell, for appellant.

It was my contention in the court below, and was so conceded by the state and so held by the court in his written opinion that we have no statute covering the offense in question. If, therefore, the defendant could be prosecuted at all, it was by reason of some offense against the common law. The state conceded that the child was not quick at the time of the alleged abortion and therefore neither section 1234, Code 1906 or Hemingway's Code, section 965, are applicable. The court below in rendering his opinion on the motion to exclude, said that if it were not for section 1525, Code 1906, Hemingway's Code, section 1287, the state would necessarily have no case, and the motion would have to be sustained. Section 1525, Code 1906, Hemingway's Code, 1287, provides that "every offense not provided for by the statutes of this state shall be indictable as heretofore at common law." I insist, therefore, that as the offense for which this defendant was indicted was not a statutory offense, but was simply an offense at the common law, and that he could be held accountable only by reason of the above-mentioned section, he should have been indicted according to the common law and not according to the statute. The indictment in this case is simply a statutory indictment, charging that the defendant did unlawfully, wilfully and feloniously kill and slay Mary Miller, a human being. The section above referred to says that for common-law offenses, not provided for by statute, the parties shall be indicted as heretofore at common law. It is unnecessary for me to cite authorities to the effect that the common law requires the pleader to insert in the indictment the manner and means by which the death was brought about.

"Where a statute merely declares the punishment of an offense known at common law and does not employ any descriptive terms, the indictment must be framed in accordance with common-law forms." 22 Cyc. 342, par. D.

In the case of State v. Prude, 76 Miss. 543, this court held that an indictment charging that the defendant "did feloniously kill and slay an unborn quick child of said Emma Prude" was not a good indictment under the code section for the reason that the manner and means were not set forth in the indictment. "In the absence of a statute obviating the necessity for such averments, the indictment must contain a statement of the manner and means of the killing." 21 Cyc. 841, par. D.

I have been unable to find any case in our reports where an indictment based upon a charge similar to this failed to set out the manner and means of the killing. In the case of State v. Proctor, 102 Miss. 792, 59 So. 890, the district attorney, proceeding under the common law, in recognizing that the common law required the manner and means of the killing to be set forth, specifically sets forth all the facts in regard to same. In the case of Smith v. State, 73 So. 793, where defendant was indicted for an attempted abortion, the district attorney charged specifically the necessary acts constituting the offense. I insist that no case can be found where an indictment has been held valid whether drawn under the statutes in question or according to the common law, that did not set out the manner and means of the killing.

It may be argued, however, that we should have demurred to the indictment in the court below, and that by failing to do so we have waived our right to question the form of the indictment. In answer to this, I simply say that the indictment as drawn was a correct indictment according to certain facts. We could not demur for the reason that the indictment upon its face was a good indictment. As was said by this court in the case of State v. Peck, 48 So. 819, where a statutory indictment was preferred:

"When the state offers its evidence to prove the crime, if it fail to make out a case, then the prosecution should be dismissed; but that is beyond the question presented here by either the demurrer or the motion to quash." In the court below, at the conclusion of the state's testimony, defendant made a motion to exclude the testimony because the charge in the indictment had not been substantiated. This motion covered everything. In the recent case of Covington County v. Morris, 84 So. 462, this court, in a civil case held that on request for a peremptory instruction, the defendant is not required to then and there point out specifically the reasons upon which he bases his request for the directed verdict but the request raises the point as to whether the plaintiff has proven his case in all of its essential requirements.

I submit, therefore, that we adopted the course provided by law and were entitled to the benefit of our objection to the indictment at the conclusion of the State's testimony, and that the indictment not being in accordance with the common-law form, was not sufficient and that our motion should have been sustained on that ground alone.

The next proposition to which I wish to address myself is that, conceding everything that the state contends for in this case, defendant was not guilty of any offense. However revolting and shocking it may be, we have no statute covering the performance of an abortion except where the child is quick. Until the child is quick, the destruction of the child does not constitute any offense against our statutes. The only two sections we have are 1234, Code 1906, Hemingway's Code, 964, and section 1235, Code 1906, Hemingway's Code, 965. In both these sections it is specifically said that the child must be quick. All the testimony for the state shows conclusively that the child was not quick when the alleged operation was performed, and therefore, as was said by the court below in his written opinion and as was conceded by the state, no offense was committed against the statute laws of the state. In the Prude case and the Peck case, supra, the indictments specially charged that the child was quick. In the Proctor case, 102 Miss. 792, 59 So. 890, it was not stated as to whether or not the child was quick, but the point was not made in that case and I therefore take it for granted that it was conceded that the child was quick. Not being any offense against the statute laws of the state, the only remaining question is as to whether or not it constituted a violation of the common law. I submit that it did not. 1 Corpus Juris, page 312, par. 10. Our court has seen fit to align itself with the majority courts, because in the Prude case, supra, our court adopted the following announcement of the common law:

"An infant in the mother's womb, not being in rerum natura, is not considered as a person who can be killed within the description of murder, and therefore, if a woman being quick or great with child, take any potion to cause an abortion or if another give her any such potion, or if a person strike her, whereby the child within her is killed, it is not murder or manslaughter," Citing 3 Russell on Crimes, page 6; Wharton on Homicide (2 Ed.), sec. 303; Wharton's American Criminal Law (6 Ed.), sec. 942; McLain on Criminal Law, sec. 294; Abans v. Foshee, 66 Am. Dec. 91, and note. I submit therefore that the offense charged and attempted to be proven is not a violation of any statute or of the common law and that a motion to exclude the testimony for the state and direct a verdict for the defendant should have been sustained.

The court below went off on the idea that the alleged offense was contrary to good morals and that therefore some offense must necessarily have been committed. However strongly we may be in favor of upholding good morals, yet in the enforcement of the criminal law, unless a certain act is condemned either by the statute or the common law, no punishment can be inflicted, even though such act may be contrary to good morals.

The next pr...