People v. Abbott
| Decision Date | 15 March 1898 |
| Citation | 74 N.W. 529,116 Mich. 263 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. ABBOTT. |
Error to circuit court, Hillsdale county; Victor H. Lane, Judge.
Remus M. Abbott was convicted of manslaughter as an accessory before the fact, and he brings error. Reversed.
Fred. A. Maynard, Atty. Gen., W. H. Frankhauser Pros. Atty., and Guy M. Chester, ex-Pros. Atty., for the People.
Noah P Loveridge and Corvis M. Barre, for defendant.
The defendant was convicted of manslaughter, as an accessory before the fact, in causing the death of Viola Stevens through the use of an instrument in an attempt to cause a miscarriage. To understand the points raised, reference should be had to the statutes relating to the subject. 2 How Ann. St. � 9106, provides that the willful killing of an unborn quick child, by any injury to the mother, which would be murder if it resulted in the mother's death, shall be manslaughter. Section 9107 makes an attempt to destroy an unborn quick child through medicine administered to, or instruments used upon, the mother, manslaughter when followed by the death of the child or mother, unless necessary to preserve the life of the mother, or so advised by two physicians. Section 9108 punishes as a misdemeanor the willful employment of drugs, etc., or instruments upon a pregnant woman, with intent to procure a miscarriage, subject to the exceptions mentioned in the preceding section. See 2 How. Ann. St. � 8438; People v. Olmstead, 30 Mich. 432. The information contained separate counts for murder and manslaughter, and also a count upon the last-mentioned section, viz. 9108. In his charge to the jury the learned circuit judge said that the defendant could not be convicted of murder, and that he could not be convicted of statutory manslaughter, under section 9107, because Viola Stevens was not shown to have been pregnant with a quick child, in the sense that such term is used in the law. He instructed them that the defendant might be convicted of a misdemeanor, under section 9108, or that he might be found guilty of manslaughter, upon the theory that death to the mother resulted from the act, which was made unlawful and punishable by section 9108, under the well-established rule that, "if a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder; if unlawful,-malum in se,-but not amounting to a felony, the killing is manslaughter; if lawful,-that is, not being malum in se,-homicide by misadventure merely." See People v. Scott, 6 Mich. 293. The defendant's counsel take the position that under these statutes there can be no conviction of the offense of murder where death is caused by any of the acts therein made punishable; that there can be no conviction of manslaughter in such cases except when the woman was, at the time of the commission of the act, pregnant with a quick child, as provided in sections 9106, 9107; and that it necessarily follows-the judge having determined and instructed the jury that Viola Stevens was not shown to have been pregnant with a quick child-that the defendant could be convicted, if at all, only of the misdemeanor created by section 9108. This contention rests upon the proposition that such act was not unlawful at the common law, it being no offense to attempt to produce an abortion upon a woman pregnant, but not with a quick child, with her consent, and upon the theory that the legislature has, by section 9107 shown an intention to reduce the offense from murder to manslaughter in cases where a woman pregnant with quick child comes to her death in this way, and by its failure to provide in section 9108 additional punishment where the woman upon whom a miscarriage is sought to be produced, dies in consequence thereof; from which it is said that it must be inferred that the intention was to make the penalty prescribed by that section the limit in all cases. We think this theory should not prevail. If we could say that the law recognizes the lawfulness of attempts to produce miscarriages, there would be more force in the contention that a fatal result to the mother would be excusable homicide, though we do not mean to intimate such an opinion; but the legislature has been to the trouble to make the mere attempt to cause a miscarriage punishable by a year's imprisonment, and we cannot believe that they intended that the death of the mother should be treated as a misadventure. It is more reasonable to believe that they left that subject to be governed by existing rules of law. Upon this theory it was reasonable for the circuit judge to say that the defendant could not be convicted of murder, because that would have been the extent of the offense had the child been quick; and it is not to be supposed that the law would be more severe in a case where the child had not quickened than where it had, even if, under existing rules, the passing of section 9108 would otherwise have made such offense murder. See Com. v. Railing, 113 Pa. St. 37, 4 A. 459. Without deciding this question, however,-it being unnecessary,-we must determine whether the conviction of manslaughter can be upheld. It may be, unless it can be said (1) that at common law a conviction could not be based on accidental killing through an unlawful act less than a felony, or (2) that it cannot be based on an act made unlawful by statute. Mr. Bishop asserts that, "if the act be both wrongful, and in its nature dangerous to life, even if it be a misdemeanor, yet, if the element of danger concurs with the element of unlawfulness of the act, the accidental causing of death thereby is murder." 2 Bish. Cr. Law, � 691. See Tiff. Cr. Law, p. 815. Counsel contend that this is not a dangerous act, basing the contention upon the evidence of physicians, which is said to show that not more than 1 per cent. of cases are fatal to the woman, where the child has not quickened. We doubt if the effect of this statute is to depend upon the opinions of witnesses upon the question of the degree of danger. But, however that may be, the act was a misdemeanor, and accompanied by some danger to life, and we shall find much authority for holding that an indictment for manslaughter will lie in such a case. "If a man happen to kill another in the execution of a malicious and deliberate purpose to do him a personal hurt by wounding or beating him, or in the willful commission of any unlawful act, which necessarily tends to raise tumults and quarrels, and consequently cannot but be attended with the danger of personal hurt to some one or other,-as by committing a riot, robbing a park, etc.,-he shall be adjudged guilty of murder." 1 Hawk. P. C. (Curw. Ed.), p. 86, � 10. Again, Bishop says (section 692): ...
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