People v. Sessions

Decision Date06 January 1886
CourtMichigan Supreme Court

Exceptions from Allegan.

Philip Padgham, for defendant and appellant.


On the twenty-first day of January, 1885, John Peck and his wife were living in the village of Wayland, in the county of Allegan. The family consisted of Mr. Peck, his wife, and one child, a small girl about five years of age. The wife was pregnant, and had been from three to four months. On that day she suddenly died, during the absence of her husband and child from home. The respondent was then, and had been for many years previous, a resident of Wayland, and the prosecution claim she was an abortionist, and on the day mentioned attempted to produce an abortion on Mrs. Peck resulting in her death. The next day after her death, a coroner's inquest was held, and post mortem examination of the body was made by Dr. Turner and Dr. Reyno, of Wayland and resulted in such disclosures as were deemed sufficient to warrant the arrest of Mrs. Sessions for the offense stated. She was accordingly arrested on the twenty-fourth day of January, 1885, upon the complaint of the prosecuting attorney of said county, charging her with the crime of murder. The warrant was issued by a justice of the peace, who, upon the examination had before him, found the offense charged had been committed, "and that there was probable cause to believe the respondent was guilty thereof, of murder in the second degree;" and she was bound over to answer the charge at the circuit. At the opening of the term, the prosecution filed an information, charging the respondent in two counts. The first was for murder, and the second for the statutory offense of manslaughter. Before pleading to the information, the respondent's counsel moved to quash the second count, for the reason that there had been no complaint or examination before the magistrate for such offense. He also moved to quash the first count, upon the ground that the allegations contained therein constituted no more than a misdemeanor under the statute. To sustain the motion as to the second count, counsel for respondent relied upon the statutory provision, that "no information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace or examining magistrate or officer, unless such person shall waive his right to such examination," etc. How.St. � 9555.

The offense charged in the first count in the information was the one contained in the complaint and warrant, and upon which the respondent had her examination before the magistrate. At common law life is not only sacred, but it is inalienable. To attempt to produce an abortion or miscarriage, except when necessary to save the life of the mother, under advice of medical men, is an unlawful act, and has always been regarded as fatal to the child and dangerous to the mother. To cause death of the mother in procuring or attempting to procure an abortion is murder at common law. 4 Bl.Comm. 194; 1 Bish.Crim.Law, � 236; Foster, Hom. 261; Ann v. State, 11 Humph. 159; Rex v. Martin, 3 Car. & P. 211; Com. v. Parker, 9 Metc. 263-265; State v. Moore, 25 Iowa, 128; 1 Hale, P.C. 429, 430; Com. v. Keeper of Prison, 2 Ashm. 227. Also Tinckler's Case, cited in East, P.C. c. 5, � 17, p. 230.

We think the first count in the information charges the crime of murder against the respondent. Inasmuch, however, as the case was not submitted to the jury under the first count, it will not be necessary to consider further the questions raised under it, except as they bear upon the exceptions taken to the rulings made under the second count. This we may properly do. People v. Lilly, 38 Mich. 270.

We do not regard the objections to the second count as tenable. There are no reasons why the two counts should not be joined in the same information. The crime charged in the second count grew out of the same transaction--the same facts--as in the first. If the allegations of fact stated in the count for murder were those relied upon for a conviction under the second count, no misjoinder can be claimed, especially if they were sufficient to convict of the statutory offense charged. If it was proper to join in the same information these two counts charging the same offense in different degrees, springing out of the same transaction, then the examination had under the count for murder must be held sufficient for the lesser offense contained in the second count. And it can make no difference whether one or both counts stated common-law offenses or not; the higher offense included the minor charge. They were both for the unlawful killing. Hanna v. People, 19 Mich. 316; People v. Annis, 13 Mich. 511; Lightfoot v. People, 16 Mich. 507, 512; People v. Lynch, 29 Mich. 274; Turner v. People, 33 Mich. 363; People v. Sweeney, 22 N.W. 50. We do not think any error was committed in overruling the motion of respondents' counsel, within the authorities above cited. Neither was any error committed by permitting any proper evidence to be given in support of the second count.

The cause was tried in the Allegan circuit, and the jury returned a verdict of guilty of the offense charged in the second count. There is now before us for review the record and bill of exceptions in the case, containing the substance of all the testimony. Upon the trial the following question was proposed to each of the witnesses for the people, Drs. Turner and Reyno: "From the examination you made there, what was your opinion as to the cause of Mrs. Peck's death?" Which was objected to for the reason that no sufficient foundation had been laid for it; that the examination made by these witnesses of the deceased, was too limited. The court allowed the witnesses to answer in substance that it was caused by an attempt to produce an abortion, in which an instrument had been used. No question appears to have been made as to the qualifications of the physicians. They had held a post mortem examination of the body, and attended the coroner's inquest. We think they had had sufficient opportunities to qualify them, and their standing as persons learned in medical science rendered their opinions as experts competent. No error was committed in receiving their testimony.

After Dr. Reyno had stated to the jury that, in the post mortem examination made, he was satisfied that he had discovered the cause of Mrs. Peck's death; that the fetus was intact, and well developed; that it was four and one-half months gone; that there was slight irritation of the stomach, which appeared to be of a recent nature; that they found the womb congested, the placenta badly lacerated, and torn forcibly by something from the womb; and that in his opinion death was produced by a shock to the nervous system,--he was then asked by counsel for the people: "What, in your opinion, was the cause of the shock?" Objected to as incompetent and immaterial. The objection was overruled, and the witness was allowed to answer that, "In my opinion, the cause of the shock was the injury done to the uterus or the womb; that death is the result of the shock, I suppose." The objection was properly overruled. The question was one falling clearly within the province of a medical expert, and was material as tending to establish the cause of death.

The doctor then testified that he did not think the injury to the placenta, just as he found and discovered it at the time, was self-inflicted. Counsel for the prosecution then asked the witness the following question: "I ask you whether, from the extent of the injury as you found it there, if Mrs. Peck was found, at the time of her death, in the bed-room, lying upon her back, and her hands by her sides, and her limbs straight, and her clothes down, alone; and if two hours before she was alive, and seemingly well; that death was caused by the shock resulting from the injury to the placenta, and that she never came out of the shock. What do you say as to the injury being self-inflicted,--whether it might have been self-inflicted under these circumstances?" Counsel for respondent objected, on the grounds "that the question does not sufficiently embody the facts as they have been testified to in the case, especially as to the appearance of the stomach; that there are some matters in the question which place the witness in the situation of the jury, rather than as a witness giving expert testimony, and upon the further ground that the premises are not properly laid as a foundation for the question." We think the question not obnoxious to these objections. It was not necessary to exclude any fact contained in the question, because it had not previously been testified to; but unless there was some testimony given tending to establish such fact before the cause was finally submitted to the jury, it would have been the duty of the court to strike out the answer given to the question. We think there was, however, given in the case testimony bearing upon and tending to establish each fact assumed in the hypothesis, either direct or circumstantial. The facts stated in the question furnished a sufficient hypothesis to allow the question to be answered, and did not infringe any rule relating to expert testimony, under the facts appearing in this case; the evidence being mainly circumstantial. The witness answered: "I don't think it could."

Dr Kidzee was called, and sworn, in the case, in behalf of the people, and upon a hypothetical question (which will be found in the margin) [1] was asked as to the cause of death. The question was objected to, on the ground that nothing had been shown as to the healthy condition of the vital organs. We think enough appeared to...

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