Peoples v. Commonwealth

• Decision Date: 27 October 1888
• Citation: 9 S.W. 509,87 Ky. 487
• Parties: PEOPLES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

9 S.W. 509

87 Ky. 487

PEOPLES v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 27, 1888

Appeal from circuit court, Jefferson county.

Mary A Peoples was indicted for manslaughter upon the charge of committing an abortion resulting in death. Defendant appeals from a judgment of conviction thereon.

Baker Kinney & Kinney, for appellant.

Frank Parsons, for the Commonwealth.

HOLT J.

The appellant, Mary A. Peoples, complains of her conviction for manslaughter upon the charge of committing an abortion upon Emma Wendelkin, resulting in her death. The unfortunate girl was seen near the house of the accused, and when going and returning from that locality in the night-time, when, as is claimed, the crime was committed. Unless this circumstance may be said to cast some suspicion upon the appellant as the perpetrator of it, there is nothing pointing to her in the least degree as the guilty offender, save the statements made by the deceased to various persons during the week that she survived the operation. It is claimed there could be no conviction upon them, as section 241 of our Criminal Code provides: "A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed, and the circumstances thereof." True, the deceased, if not an actor, was at least a consenting party to the deed. The law does not, however, regard her as an accomplice. She could not have been indicted for it. She is looked upon rather as the victim than as a co-offender. Dunn v. People, 29 N.Y. 523; Com. v. Wood, 11 Gray, 85; Same v. Brown, 121 Mass. 69; State v. Owens, 22 Minn. 238; Same v. Hyer, 39 N. J. Law, 598.

The indictment is not defective in failing to aver that the deceased was ""quick" with child when the injury was inflicted. The authorities are somewhat divided upon the question whether at common law it is an offense at all to procure an abortion with the consent of the woman when she is not "quick" with child. If the charge were for abortion merely, authority might be cited in support of this objection to the indictment. Indeed, the current of authority is in this direction. Mitchell v. Com., 78 Ky. 204; State v. Cooper, 22 N. J. Law 53; Abrams v. Foshee, 66 Amer. Dec. 77; Com. v. Parker, 9 Metc. 263; Smith v. State, 33 Me. 48. There is some difference of opinion, however, upon this question. Mills v. Com., 13 Pa. St. 633. It does not arise in this case, however. Here the charge is for the death of the mother as the result of means used to procure an abortion. The distinction between the two cases must be observed. Nor is this properly a case of involuntary homicide. The act was not only immoral,--violative of the law of nature, and deliberate in character,--but reckless of life, and wrongful per se. The death of the woman may not have been intended; there may have been no express malice against her. Neither is there in the case of one who, knowing that people are passing upon a street, throws a stone from a housetop, resulting in death; but yet a killing under such circumstances is not involuntary manslaughter, or a killing per infortunium. If this were but an involuntary homicide, then at common law and in this state the punishment could be but a fine and imprisonment, or one entirely inadequate to deter evil disposed persons from its commission. The recklessness of the act forbids its being so regarded Offenses and punishments must be so graded as to remedy the mischief. It has, however, never been held to be less than voluntary manslaughter. It is perhaps questionable whether even in mercy, or out of regard to the frailty of human nature, it should, under any circumstances, be so reduced as to one whose act is deliberately done, and known to the doer to be reckless of life and the interests of good society. By at least the earlier common law it appears to have been nothing less than murder, although there may have been no intention to kill the woman. In 1 Russ. Crimes, 739, it is said: ""So where a person gave medicine to a woman to procure an abortion, and where a person put skewers into the womb of a woman for the same purpose, by which in both cases the women were killed, these acts were held clearly to be murder; for though the death of the woman was not intended, the acts were of a nature deliberate and malicious, and necessarily attended with great danger to the persons on whom they were practiced." Blackstone says: "So, also, if one gives a woman with a child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it." 4 Bl. Comm. 201. The language of another eminent writer is: "If one administers a drug to a pregnant woman, or does to her any criminal act the object of which is merely to produce an abortion, yet if, in consequence of this act, dangerous in its tendency, the mother dies, or the child is prematurely born, and dies from the too early exposure to the external world, he is guilty of murder." 2 Bish. Crim. Law, § 691. This doctrine should not be based upon the rule of law that whenever an unlawful act--one malum in se--is done in the prosecution of a felonious intention, or the perpetration of a collateral felony, and death ensues, it is murder; because, as we have already seen, the weight of authority is that it is no offense to procure an abortion unless the woman be quick with child, but upon the fact that it is a deliberate act endangering her life. It was said in Smith v. State, supra: "If medicine is given to a female to procure an abortion, which kills her, the party administering it will be guilty of her murder. This is upon the ground that the party making such an attempt, with or without the consent of the female, is guilty of murder; the act being done without lawful purpose, and dangerous to life, and malice will be imputed." Where, however, it is done with no intent to inflict serious injury upon her, and in such a way that it is not per se likely to so result, but through negligence in the operation death does ensue, we incline to the opinion, but with some hesitation, that it is but manslaughter....