People v. Aiken

• Decision Date: 23 June 1887
• Citation: 66 Mich. 460,33 N.W. 821
• Court: Michigan Supreme Court
• Parties: PEOPLE v. AIKEN.

33 N.W. 821

66 Mich. 460

PEOPLE v. AIKEN.

Supreme Court of Michigan

June 23, 1887

Exceptions from superior court of Grand Rapids.

Moses Taggart, Atty. Gen., for plaintiff.

Smiley & Earle, for defendant.

MORSE J.

Mary Noel, the daughter of John Noel, a farmer residing a few miles out of the city of Grand Rapids, became intimate with a young man by the name of Hamilton, and from such intimacy her pregnancy resulted. Some time in January or February, 1886 her condition was discovered by her family. Hamilton refused to marry the girl, and measures were taken to conceal her pregnancy from the world at large. One Dr. Weston, the family physician, was consulted, and finally it was thought best by all concerned to let nature take its course. It was agreed by the girl, her family, and young Hamilton that a lying-in place should be secured in Grand Rapids as private as possible, and that she should be put under the care of a reputable physician in that city, who should attend her during her sickness and confinement Hamilton, who was studying medicine, undertook to engage such physician. He called upon the respondent, who had been practicing his profession for many years in the city of Grand Rapids, and arranged with him to find a suitable boarding-place for the girl. It was agreed that respondent should be paid $100 to cover the expenses of board and his medical services. Respondent engaged board for her at a Mrs. Sleight's, who was then boarding one or two women afflicted with the same trouble. February 19, 1886 Mr. Noel, in pursuance of this arrangement, brought his daughter to the respondent's office, paid him $90, and returned home. It appears that he afterwards paid the doctor the remaining $10. Hamilton gave Noel $25 in money, and his note for $100, the agreement being that he should pay all necessary expenses. The same evening, about dark, she arrived at Mrs. Sleight's. She drank a cup of tea, and went to bed about 8 o'clock. Soon after, she called Mrs. Sleight who found her suffering from a child. She was sick from that time until the twenty-sixth day of February 1886, when she died. Aiken visited her, and prescribed for her during her sickness. On Sunday morning, February 21st, she was delivered of a dead foetus. Mrs. Sleight thinks the child was between five and six months old. She swears that Dr. Aiken came that morning, removed the after-birth, and took away the foetus in a hand satchel. He also directed ergot to be administered to stop flooding. On Monday following, the respondent brought Dr. Sligh there. During the girl's illness he also brought a Dr. Best with him to see his patient, who visited her three or four times, in company with respondent, between the twenty-second of February and the time of her death. Dr. Sligh first saw the girl on the twenty-second of February. He called upon her at the request of respondent. He visited her but once. Respondent asked him to go the next day, but he refused, and thereupon Dr. Aiken procured the services of Dr. Best, who first saw her on the 23d. The next day after her death, a post mortem examination was held, principally conducted by Dr. De Camp, who was assisted by Drs. Edie, Clark, Graves, and Bradish.

On the eighth day of March, 1886, Dr. Aiken was arrested upon a warrant, issued by the judge of the police court, charging him with manslaughter. He had an examination on such warrant, and on the fourteenth day of May, 1886, was bound over to the superior court of the city of Grand Rapids to await his trial. In the September term of that court the prosecuting attorney filed an information against him, said information containing four counts. The first count corresponded with the complaint and warrant, and alleged that on the twenty-sixth day of February, 1886, at the city of Grand Rapids, in the county of Kent, the said Nathan J. Aiken feloniously and willfully did kill and slay one Mary Noel, contrary to the statute, etc. The second and third counts charged statutory manslaughter, (How.St. � 9107,) the second count alleging the administering of medicines and drugs, and the third the use of an instrument. These counts charged the means of the abortion with having been used on the nineteenth of February, 1886. The fourth count was as follows: "And the prosecuting attorney, who prosecutes as aforesaid, further gives the said court here to understand and be informed that the said Nathan J. Aiken, late of the city aforesaid, at the county aforesaid, on, to-wit, the said nineteenth day of February, A.D.1886, at the city aforesaid, in the county aforesaid, took the care and charge of the said Mary Noel, she, the said Mary Noel, being then and there pregnant with child, as a man midwife, and to assist and attend upon and take care of her, the said Mary Noel, and do everything needful and proper to and for, during and after the time of her labor and delivery of the said child, wherewith the said Mary Noel was then and there pregnant; and that the said Nathan J. Aiken afterwards, and while he had such care of the said Mary Noel as aforesaid, and immediately after the said Mary was delivered of the said child wherewith she had then lately before been pregnant, to-wit, on the twenty-first day of February, A.D.1886, at the city aforesaid, in the county aforesaid, her, the said Mary Noel, lying on a bed in great illness, pain, and weakness, did on the last-mentioned day there feloniously neglect and refuse to attend upon, and to take proper, sufficient, and necessary care of, and to render her proper and necessary assistance, and did then, on said last-mentioned day, there feloniously neglect and refuse to do to and for her, being in such state, and did there, on said last-mentioned day, there leave and desert the said Mary Noel in such state as aforesaid, without a proper and sufficient person to take care of her, and to do for her what was needful for her, being in such state, and unable to take care of and to do what was needful and necessary for herself, and that, by reason and means of the said Nathan J. Aiken, there, on said last-mentioned day, so neglecting and refusing, as aforesaid, to do to and for her, the said Mary Noel, what was needful and proper for her, and by the said Nathan J. Aiken so leaving and deserting the said Mary Noel as aforesaid, she, the said Mary Noel, became mortally sick, emaciated, and enfeebled in body, and of said mortal sickness, emaciation, and feebleness of body, on and from the said last-mentioned day until the said twenty-sixth day of February, A.D.1886, at the city aforesaid, in the county aforesaid, did languish, and languishing did die, on which twenty-sixth day of February, A.D.1886, she, the said Mary Noel, at the city aforesaid, in the county aforesaid, of the said mortal sickness, emaciation, and feebleness of body died, and so the said Nathan J. Aiken, in manner and form aforesaid, feloniously did kill and slay the said Mary Noel, contrary to the statute in such case made and provided, against the peace and dignity of the people of the state of Michigan."

Upon the trial the first count was practically abandoned, and the jury returned a general verdict of guilty upon the last three counts. The case is brought here upon exceptions before judgment. A large number of errors are assigned, but we shall notice only those that we think are important.

The counsel for the respondent moved, after the withdrawal of the plea of not guilty, which had been entered pro forma and before trial, to quash the second, third, and fourth counts of the information, on the ground that the offenses charged therein were not the offenses named in the complaint and warrant, and on which the respondent was examined in the police court, and for the further reason that the fourth count stated no crime whatever. The motion was overruled, and exception taken.

As far as the second and third counts are concerned, the question must be considered as settled in favor of the ruling of the court below. It is not necessary to review the reasons for this holding. It has been sufficiently discussed in People v. Sweeney, 55 Mich. 586, 22 N.W.Rep 50; People v. Sessions, 58 Mich. 594, 26 N.W. 291; and People v. McDowell, 30 N.W. 68. But in relation to the fourth count I am satisfied that the motion should have been sustained. I do not think it is governed by either of the decisions above cited. The second and third counts are only used to state the commission of the same statutory crime of manslaughter by the use of different means, both of which are embodied in the statute. But the fourth count does not come within the statute, nor can it be considered as charging in any manner the crime of manslaughter by an attempt to produce an abortion, or by an abortion. It charges an offense entirely removed from any hint of anything but a natural birth, and the sickness of the mother resulting therefrom, without the criminal act of any person. It puts the respondent on trial for the criminal neglect of the respondent as a man midwife, to whom the care of the patient had been committed, and undertakes to hold him responsible for her death because of such criminal neglect and for nothing else. It is conceded, as it was decided in People v. Olmstead, 30 Mich. 431, that the first count could not be used to convict the respondent of the offense charged in this fourth count, or of any manslaughter arising out of any negligence or fault from which death was a consequential result. The first count could only be used in cases where the killing resulted directly from acts of violence. People v. Olmstead, at pages 438 and 439. The allowance of the use of the second and third counts, based upon a complaint and warrant charging manslaughter as in the first count, has been justified in this...