People v. McDowell

• Decision Date: 21 October 1886
• Citation: 63 Mich. 229,30 N.W. 68
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MCDOWELL.

30 N.W. 68

63 Mich. 229

PEOPLE v. MCDOWELL.

Supreme Court of Michigan

October 21, 1886

Error to superior court, Grand Rapids.

Isaac Marston, (S.D. Clay, of counsel,) for defendant and appellant.

When two offenses are charged, the State must elect on which it will proceed. Tiedke v. City of Saginaw, 43 Mich 64; S.C. 4 N.W. 627; People v. McKinney, 10 Mich 94, 95.

In a trial for killing a woman who was quick with child, while attempting an abortion, her statements as to pregnancy, made out of accused's hearing, are admissible, as in cases of justifiable homicide previous statements of the deceased, not in the accused's hearing, are admissible, (Patten v People, 18 Mich. 329; People v. Lilly, 38 Mich 271; Stokes v. People, 53 N.Y. 175;) or in assault and battery, (Jewett v. Banning, 21 N.Y. 27.)

Moses Taggart, Atty. Gen., for the State.

The state need not elect upon which of two counts it will proceed. 1 Archb.Crim.Pr. (8th Ed.) 292, 295; Jennings v. Com., 17 Pick. 80; U.S. v. Furlong, 5 Wheat. 185. If one count was good, it would sustain the verdict. People v. McKinney, 10 Mich. 54; Com. v. Hawkins, 3 Gray, 464.

In regard to evidence of abortion, see People v. Hare, 24 N.W. 846; People v. Barker, 27 N.W. 539; Everett v. State, 62 Ga. 65. Error will not be presumed. Curley v. Wyman, 34 Mich. 353; Maillet v. People, 42 Mich. 262; S.C. 3 N.W. 854.

As to joinder of counts, see People v. Sweeney, 55 Mich. 587; S.C. 22 N.W. 50; People v. Sessions, 26 N.W. 292.

SHERWOOD, J.

The complaint in this case was made by Francis Boyland against the respondent, charging him with murdering Sylvia Sawdy, at the city of Grand Rapids, on or about the twenty-third day of December, 1885. He was arrested upon a warrant issued upon the complaint, and taken before the police court of Grand Rapids, where he waived an examination, and he was held to appear for trial in the superior court of Grand Rapids. He was arraigned upon an information containing three counts. The first, for murder of Sylvia Sawdy; the second and third, for manslaughter,--the second count alleging Sylvia Sawdy was quick with child. To the information the respondent, when arraigned, pleaded not guilty. No objection was made against the proceedings before the police court, or to the form of the information. A trial was had in the superior court in Grand Rapids, and the respondent was convicted of the crime of manslaughter, and sentenced to imprisonment at Jackson for the term of 15 years. The respondent brings the case before us for review.

Before impaneling the jury for the trial, respondent's counsel asked that the people be compelled to elect upon which of the counts they should rely. The court declined to grant the request, and respondent excepted. We think the ruling was right under the decision of this court. Stuart v. People, 42 Mich. 257; S.C. 3 N.W. 863; People v. Sweeney, 55 Mich. 586; S.C. 22 N.W. 50; People v. Sessions, 58 Mich. 594; S.C. 26 N.W. 291; People v. Annis, 13 Mich. 511; Turner v. People, 33 Mich. 363; People v. McKinney, 10 Mich. 54. See, also, Jennings v. Com., 17 Pick. 80; U.S. v. Furlong, 5 Wheat. 185; 1 Archb.Crim.Pr. & Pl. 292, 295; Com. v. Hawkins, 3 Gray, 464.

Sylvia Sawdy was the daughter of Dr. Sawdy, who, at the time of the death of the daughter, was living at Howard City, 40 miles north of Grand Rapids, and had lived there and practiced his profession for about seven years previous. His daughter, at the time of her death, was about 21 years of age, and had always lived in his family, except a few weeks, when she worked for some of the neighbors. Dr. Sawdy was sworn in the case in behalf of the people, and testified that he knew the respondent; that his father lived in Howard City, and that the witness first became acquainted with the respondent about 18 months before the trial, which was about a year before the death of his daughter; that he came to his place to see his daughter Sylvia, and was in the habit of frequently visiting her; came generally evenings, on the Sabbath; that he had no business there except to see her; that he corresponded with her; that Sylvia left Howard City on the tenth of December to go to Grand Rapids, and told her father, when she left on the train, she was going to visit the respondent's mother; that the doctor heard nothing from his daughter until the morning of the twenty-fourth of December, and was then informed by the respondent's father that he had received a telegram or telephone from Harry McDowell that "Sylvia was very sick, and wanted her mother to go down there and see her," and thereafter, and on the next day, he read in the morning papers that she was dead. The testimony relating to the information derived from the respondent's father was objected to as incompetent, but was admitted by the court. We think there was no error in this ruling.

The claim of the people was that the respondent caused the death of this daughter in an attempt to produce an abortion, and that it was this very sickness that he was then notifying to the parents of the daughter by the message to his father; that the daughter was then pregnant, by the respondent, with a quick child; and that the respondent not only produced the abortion, but in doing so killed the mother. We think, as the case stood, the testimony was admissible. It was the theory of the prosecution that the respondent had not only gotten Sylvia with child, but, when she left her father's house, she was enticed away by the respondent to allow him to commit the crime charged against him, and in this view of the case all that he did and said in furtherance of his wicked purpose, from the time Sylvia left her home, and the means he employed in doing and saying what he did, became part of the res gestoe, and proper to be given in evidence.

We fail to discover any error in the rulings of the court upon the testimony received, given by Drs. Bodle, Hake, and Bradish.

In regard to the statements of the deceased, in relating her pregnancy, in the month of November, we think the record does not show sufficient upon that subject to enable us to determine whether or not what was expected to be proved would be competent, and the doctrine that error must be made to appear applies as well in criminal as in civil cases.

It is further claimed by counsel for respondent that the respondent's fourth and fifth requests to charge should have been given as requested. These two requests are as follows:

"(4) That if they find that an instrument had been used for that purpose, and the evidence leaves it uncertain whether the respondent used such instrument, or that the deceased herself made use of it, then the jury must acquit.

"(5) If the jury find that the death of Sylvia Sawdy was produced by means of an instrument thrust into her womb with intent to destroy a quick child, with which she was then and there pregnant, and they are unable beyond any reasonable doubt to say that the respondent made use of such instrument for such purpose, then they must acquit."

Upon the subject referred to in these two requests the court said to the jury: "In order to warrant you, under the law of the case, in rendering a verdict of guilty against the respondent, you must find from the evidence--First, that Sylvia Sawdy was pregnant at the time charged; secondly, that pregnancy had so far advanced as to have developed into a live unborn child, liable to be killed by violence,--in other words, had become a quick child; thirdly, that the death of Sylvia Sawdy was caused by the respondent, by the thrusting up and into her womb some instrument with intent to destroy such quick child, with which she was then pregnant. If you have any reasonable doubt upon any of these facts, you must acquit the respondent."

We think these charges sufficiently cover, not only the ground stated in the requests, but the case as it was actually presented upon the facts.

Complaint is made of the argument presented to the jury and language used by counsel for the people in summing up the case; but we find no objection taken to it by respondent at the time, and we fail to see that any could properly have been. Some strong expressions were indulged in, but the case itself, if the theory of the prosecution was correct, was one well calculated to arouse the energies and indignation of any virtuous advocate, and we are not prepared to say, from anything appearing in the record, any excess was reached.

The record is not very satisfactory upon some of the points made where exceptions were taken; but, from anything appearing, we can discover no reason, why the respondent did not have a fair trial in the superior court, and the judgment must be affirmed.

CAMPBELL, C, J., concurred.

MORSE J.

In this case I agree in the affirmance of the conviction, but I cannot assent to the language, as a whole, contained in the opinion of my Brother SHERWOOD. Therefore I deem it best to state the reasons upon which I base my vote to affirm the judgment.

In regard to the information filed in the cause, the question raised is almost identical with that disposed of in this court in the cases of People v. Olmstead, 30 Mich 431, and People v. Sessions, 58 Mich. 594, S.C. 26 N.W. 291. I still adhere to the view I expressed in the latter case; but, as the majority of the court in that case held otherwise, their determination must be considered as the settled law of this state. The decision in People v. Olmstead is practically overruled. My own opinion as to the soundness of the position taken by my brethren in People v. Sessions upon this...