People v. Jones, 90.

• Decision Date: 24 February 1944
• Docket Number: No. 90.,90.
• Citation: 13 N.W.2d 201,308 Mich. 43
• Parties: PEOPLE v. JONES.
• Court: Michigan Supreme Court

308 Mich. 43

13 N.W.2d 201

PEOPLE

v.JONES.

No. 90.

Supreme Court of Michigan.

Feb. 24, 1944.

Thelma Jones was convicted of a felony of wilfully employing on the person of a named pregnant woman a certain instrument with intent to produce a miscarriage, and she appeals.

Affirmed.

Appeal from Circuit Court, Muskegon County; Joseph F. Sanford, judge.

Before the Entire Bench.

F. E. Wetmore, of Hart, for appellant.

Henry L. Beers, Pros. Atty., of Muskegon, for appellee.

BOYLES, Justice.

The defendant was convicted of a felony on an information alleging that the defendant ‘heretofore towit on the 16th day of August, 1942, at the city of Muskegon, in the county of Muskegon, aforesaid, did then and there, feloniously and wilfully employ upon the person of Margaret Holstein, a pregnant woman, a certain instrument, to-wit: a catheter,’ with intent to produce a miscarriage.

The section of the Penal Code, Act No. 328, § 14, Pub.Acts 1931 (Stat.Ann. § 28.204) under which this charge was laid is as follows:

‘Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, * * *.’

On appeal the defendant claims that the court crred in denying defendant's motion for a directed verdict on the ground that the proofs failed to establish that Margaret Holstein was a pregnant woman on the 16th day of August, 1942.

The defendant admitted using a catheter upon the person of Margaret Holstein on the 16th day of August but the defense is that she was not then a pregnant woman. There was testimony to show that Mrs. Holstein found that she was pregnant about the 1st of July, that she herself attempted to produce a miscarriage about the 6th or 7th of July but made no further attempt. She testified that the defendant employed a catheter upon her person and attempted to produce a miscarriage by that means, on the 14th of August; that she paid the defendant $20 on that occasion, and another $20 on the 15th. There was testimony to submit to the jury to show that Mrs. Holstein was pregnant on August 14th and that the defendant used a catheter upon her person at that time with intent to procure a miscarriage.

The time when the illegal operation was performed is not an essential element of the offense, except to the extent of showing that Mrs. Holstein was pregnant at the time the illegal operation was performed. The time of the offense was alleged under a videlicet in the information and it was sufficient to establish that the offense occurred on the 14th. People v. Dieterich, 142 Mich. 527, 105 N.W. 1112;People v. Leneschmidt, 260 Mich. 671, 245 N.W. 544. In People v. Whittemore, 230 Mich. 435, 203 N.W. 87, 88, the court said:

‘A videlicet avers a date tentatively, and, unless a particular day or date is essential to a crime, there is no variance if the evidence shows that the very crime charged was actually committed on a different date.’

Section 45 of the Code of Criminal Procedure, 3 Comp.Laws 1929, § 17259 (Stat.Ann. § 28.985) provides:

‘The indictment or information shall contain:

* * *

‘2. The time of the offense as near as may be but no variance as to time shall be fatal unless time is of the...