Scott v. People

• Decision Date: 24 March 1892
• Citation: 30 N.E. 329,141 Ill. 195
• Parties: SCOTT v. PEOPLE.
• Court: Illinois Supreme Court

141 Ill. 195

30 N.E. 329

SCOTT

v.PEOPLE.¹

Supreme Court of Illinois.

March 24, 1892.

Error to circuit court, Whiteside county; JAMES H. CARTWRIGHT, Judge.

Indictment against Freeman J. Scott for attempt to produce an abortion. Defendant was convicted, and brings error. Affirmed.

Defendant's refused instructions Nos. 21 and 25, referred to in the opinion, were as follows: ‘(21) You are also instructed that in your endeavors to determine whether the testimony in this case satisfies your minds beyond all reasonable doubt that the defendant committed the crime as charged in the indictment, you are not only at liberty but should take into consideration any and all testimony offered upon this trial as to the defendant's capacity for committing an abortion if he desired to, and the ease with which it could or could not be perpetrated by a medical man, if there is any such evidence before you, and the number of times testified to by the prosecutrix that he attempted to produce such abortion, and his lack of success upon each occasion in such attempts to produce such abortion; and if, after a consideration of all such evidence as you believe has been detailed before you on this trial, in connection with all the other facts and circumstances that have been developed on the trial, you are still unable to say in your own minds that you believe the defendant has been proven guilty beyond all reasonable doubt, then it will be your duty to find a verdict of not guilty.’‘(25) The jury is further instructed that, if they believe from the evidence that in November, 1889, and during that month, the defendant in this case was so afflicted with boils and carbuncles that he was unable to perform upon the prosecutrix the operation of inserting the instrument into her womb, as charged in the indictment, you are at liberty and in fact should take such facts and circumstances into consideration in determining in your minds whether the people on this trial have proven beyond all reasonable doubt the guilt of the accused; and if, after having carefully considered all the testimony that has been detailed before you in reference to his affliction with boils and carbuncles, if any such evidence has been adduced, in connection with all the other facts and circumstances developed on the trial, you still hesitate and pause in arriving at a conclusion as to his guilt or innocence of the crime charged in the indictment, then you can say that you have a reasonable doubt as to the guilt of the defendant, and it will be your duty to find a verdict of not guilty, in the manner and form as charged in the indictment.’O. F. Woodruff and J. D. Andrews, for plaintiff in error.

George Hunt, Atty. Gen., and Walter Stager, State's Atty., for the people.

MAGRUDER, C. J.

This is an indictment against the plaintiff in error for an attempt to produce an abortion. He has been tried before a jury and found guilty, and sentenced by the circuit court to imprisonment for one year in the penitentiary. The indictment contained four counts. Motion was made to quash, and was sustained as to the first and third counts, but overruled as to the second and fourth. After return of verdict of guilty, motions for new trial and in arrest of judgment were made and overruled, and exceptions taken.

First. It is charged by the plaintiff in error that the second and fourth counts of the indictment are defective, because they do not allege an intent to procure an abortion. The second count charges that Freeman J. Scott, on, etc., at, etc., ‘did unlawfully, feloniously, and willfully use and employ a certain instrument called a ‘ speculum,’ and a certain instrument called a ‘catheter,’ and a certain instrument called a ‘sound,’ and a certain instrument called a ‘forceps,’ and a certain metallic instrument the name of which is to said jurors unknown, and in and upon one Ruth Aument, who was then and there a woman pregnant with child, by then and there forcing, thrusting, and inserting said instruments into the private parts and womb of the said Ruth Aument, then and there did thereby unlawfully, feloniously, and willfuly attempt to procure and produce the miscarriage of said Ruth Aument, it not being then and there necessary to procure or produce such miscarriage for the preservation of the life of the said Ruth Aument,' etc. The fourth count charges that Freeman J. Scott, on, etc., at, etc., ‘did unlawfully, feloniously, and willfully use and employ a certain instrument called a ‘ speculum,’ and a certain instrument called a ‘sound,’ and a certain instrument called a ‘catheter, and a certain instrument called a ‘forceps,’ in and upon one Ruth Aument, then and there being a woman pregnant with child, by then and there forcing, thrusting, and inserting said instruments into the private parts and womb of the said Ruth Aument, and then and there did thereby unlawfully, feloniously, and willfully attempt to procure and produce the miscarriage of the said Ruth Aument; and neither of said instruments was then and there used or employed by said Freeman J. Scott, as aforesaid, as necessary for the preservation of the life of said Ruth Aument; and said Freeman J. Scott did not then and there attempt, as aforesaid, to procure or produce the miscarriage of said Ruth Aument as necessary for the preservation of the life of said Ruth Aument,' etc. In Baker v. People, 105 Ill. 452, we said, in regard to such an indictment as this one: ‘We think the indictment is substantially good, and that, consequently, there was no error in overruling the motion to quash.’ Although the point here urged was not specifically made in the Baker Case, we think the observation avove quoted is applicable to the second and fourth counts of the present indictment, notwithstanding the absence therefrom of an allegation of intent. Section 468 of our Criminal Code² provides that ‘every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.’ The statute under which the present indictment was found is as follows: ‘Whoever, by means of any instrument, medicine, drug, or other means whatever, causes any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother's life, shall be imprisoned in the penitentiary not less than one year nor more than ten years.’ 1 Starr & C. St. pp. 753, 857, §§ 3, 468; Rev. St. 1891, c. 38, § 3. The counts, as above set forth, not only charge the offense in the language of the statute, but so plainly that the nature of the offense was easily understood by the jury. Cole v. People, 84 Ill. 216;Fuller v. People, 92 Ill. 182;Loehr v. People, 132 Ill. 504, 24 N. E. Rep. 68. It is a principle of pleading that, whatever is included in or necessarily implied from any express allegation, need not be otherwise averred. Baysinger v. People, 115 Ill. 419, 5 N. E. Rep. 375; Maynard v. People, 135 Ill. 416, 25 N. E. Rep. 740. Although the statute does not use the word ‘intent,’ yet the word ‘attempt,’ which it does use, necessarily includes intent. Thompson v. People, 96 Ill. 158. ‘An attempt is an intent to do a particular thing with an act towards it falling short of the thing intended.’ 1 Bish. Crim. Law, § 728. ‘When we say that a man attempted to do a thing, we mean that he intended to do, specifically, it, and proceeded a certain way in the doing.’ Id. § 729. ‘It seems impossible to doubt that the only distinction between an intent and an attempt to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution.’ Prince v. State, 35 Ala. 367; Lewis v. State, Id. 380; Gray v. State, 63 Ala. 73;Hart v. State, 38 Tex. 382;Johnson v. State, 14 Ga. 55. Counsel for plaintiff in error refer to several cases where the indictments were framed under statutes which used the word ‘intent,’ but these cases have no application here where the statute uses the word ‘attempt’ only. These counts sufficiently set out the facts, from which it would appear that an attempt was made to produce a miscarriage. Loehr v. People, supra. They allege that Scott used certain instruments, which are named, in and upon Ruth Aument, a woman pregnant with child, by forcing and inserting them into her womb, and thereby attempted to produce the miscarriage, it not being necessary to do so to preserve her life. The statute is aimed at ‘those, who, with the intent and design of producing the abortion, shall use any means to that end.’ Slattery v. People, 76 Ill. 217. Where an act is indifferent in itself, the intent with which it was done becomes material and must be alleged and proven; but where the act is in itself unlawful, the proof of the justification lies with the defendant, and on failure thereof the law implies a criminal intent. King v. Philipps, 6 East, 464; McCutcheon v. People, 69 Ill. 601; Lyons v. People, 68 Ill. 271. An attempt to produce a miscarriage that is not necessary to preserve life, by forcing instruments into the womb of a pregnant woman, is such an unlawful act that the law implies therefrom a criminal intent. Bassett, Crim. Pl. p. 402; Moore, Crim. Law, p. 313; 1 Amer. & Eng. Enc. Law, 936.

Second. It is claimed that there was error in the giving and refusal of instructions. The eleventh instruction given for the plaintiff is objected to upon the ground that the jury are required to find that the defendant attempted with instruments to produce the miscarriage as charged, but are not required to find that such attempt was made with the intent to produce a miscarriage. The observations already made in regard to the indictment apply to this instruction. If the jury found that de...