Mitchell v. Commonwealth
| Decision Date | 29 November 1879 |
| Citation | 78 Ky. 204 |
| Parties | Geo. F. Mitchell v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
1. It never was at common law a punishable offense to produce, with the consent of the mother, an abortion prior to the time the mother became quick with child.
2. The indictment does not allege that the mother was quick with child, nor does it aver that the potion was administered with the intention to destroy the life of the child, nor that such was the result produced by the potion. There being no statute, it is held that the indictment is not good.
3. The instructions do not form a part of the bill of exceptions and cannot be considered.
APPEAL FROM OHIO CIRCUIT COURT.
MCHENRY & HILL FOR APPELLANT.
1. The instructions are erroneous.
2. The indictment is insufficient. It does not aver that the mother was quick with child. .
P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
1. There is no exception to any instruction given.
2. The destruction of an infant is, at common law, a high misdemeanor. (Wharton's Crim. Law, 1220.)
This appeal is from a conviction and fine of three hundred and seventy-five dollars, on indictment charging appellant with procuring an abortion.
Section 341 of the Criminal Code is as follows: " A judgment shall not be reversed for an error of the court in instructing or refusing to instruct the jury, unless the bill of exceptions contain all the instructions given by the court to the jury, and unless it shall thereupon appear that the law applicable to the case was not correctly and fairly given to the jury."
There is no bill of exceptions showing any instructions given or refused. Following the bill of evidence and exceptions, signed by the judge of the court below, are the following statements made by the clerk, to-wit:
" Instructions given are as follows," and after this is what purports to be the instructions referred to. After this is the statement: " Instructions refused by the court are as follows," followed by what purports to be the instructions refused.
If these instructions were presented, as here presented, in a bill of exceptions properly signed, so as to identify them, we might be authorized, under the authority of Mickey v. Commonwealth (9 Bush), Smith v. Commonwealth (1 Duvall), Clem v. Commonwealth and Jones v. Commonwealth (3 Met.), to consider them; but they do not appear to be a part of the bill of exceptions, and are not therefore sufficiently identified. (Section 282, Criminal Code; title 9, chapter 2, article 4, Civil Code.)
The more important inquiry is whether the indictment sets forth an offense punishable by the law, and as the statutes of this state are silent in reference to this matter, reference must be had to the common law.
The indictment is as follows:
" The grand jury of Ohio county, in the name and by the authority of the Commonwealth of Kentucky, accuse Geo. F. Mitchell of the crime of wilfully and unlawfully producing a miscarriage and abortion on another, committed in manner and form, to-wit: the said Geo. F. Mitchell, in the county of Ohio, on the _____ day of August, 1878, and before the finding of this indictment, did wilfully, knowingly, unlawfully, and feloniously give and administer to Miss M. B. Burgess, a woman who was then and there pregnant and in the family way, and who had been so about three months, a certain deleterious drug, potion, and medicine, which said Burgess took inwardly--the said drug, potion, and medicine is unknown to the said grand jury--with intent to, and did thereby, by giving and administering to her as aforesaid, cause her, the said Burgess, to abort and miscarry, and bring forth many months before her time, contrary to the form of the statutes," & c.
In Commonwealth v. Bangs (9 Mass.), decided in 1812, it was held that the averment that the woman was quick with child at the time of the abortion was essential to the validity of the indictment. This case was followed and approved in Commonwealth v. Parker (9 Metcalfe), decided in 1845, in which it was held that to produce an abortion on a woman, before she was quick with child, and with her consent, was not a punishable offense at the common law. Subsequently the legislature of Massachusetts passed an act making the destruction of the fœ tus, at any time, punishable. (St. 1845, chap. 27.) In Smith v. State (33 Maine), decided in 1851, the same view as to what the common law was is expressed.
In The State v. Cooper (2 Zabriskie, 53), to produce an abortion previous to the quickening of the child, was held not to be punishable at common law.
Upon the other hand, as to what the common law is, the Supreme Court of Pennsylvania expresses the contrary view--holding that the offense is punishable at common law, whether committed before or after the woman has become quick. (Mills v. Commonwealth, 13 Pa. State, 633.) It is there said: The only authority cited in this opinion is an opinion of the same court (Commonwealth v. Demain), delivered in 1846, and section 308 of Wharton's Criminal Law.
Mr Wharton on Criminal Law, sections 1220 to 1228, inclusive, expresses the opinion that the rulings by the Pennsylvania Supreme Court are a correct exposition of the common law upon this question....
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