State v. Alcorn

CourtUnited States State Supreme Court of Idaho
Citation7 Idaho 599,64 P. 1014
Decision Date29 April 1901

CORPUS DELICTI-EVIDENCE.-The corpus delicti may be proven by declarations and circumstances, but the order in which the evidence proving the different material facts is introduced is not material.

ABORTION.-In a prosecution upon the charge of murder, where the death of deceased is alleged to result from an operation performed for the purpose of bringing about an abortion, the pregnancy of deceased must be proven beyond reasonable doubt, but need not be demonstrated to an absolute certainty.

MURDER IN THE SECOND DEGREE-MANSLAUGHTER.-Where an unnatural abortion is sought to be caused by the use of instruments and drugs, or either, and death results, an abortion not being necessary to save the life of the woman, such acts, under the statutes of Idaho, constitutes the crime of murder in the second degree, and an instruction that such acts constitute the crime of murder in the second degree, or manslaughter, is erroneous.

PREJUDICIAL ERROR.-An erroneous instruction, which is beneficial to, and not prejudicial of, the rights of the accused, is not ground of reversal in a case in which the rights of the accused have been carefully guarded and substantial justice done.

REVERSIBLE ERROR.-Under an indictment charging murder, a verdict of guilty of manslaughter is authorized under section 7926 of the Revised Statutes of Idaho.

MOTION IN ARREST OF JUDGMENT-DEMURRER.-An indictment that charged an assault was committed June 21st, and that deceased continuously languished therefrom until June 23, 1899, and then died from the result of injuries received during the assault; no demurrer was interposed to the indictment; a motion in arrest of judgment was made after the verdict, upon the ground that the indictment did not charge that death ensued within a year and a day after the assault, which motion was denied-Held, upon appeal, that the motion was properly denied, such question not having been raised by demurrer, and no showing being made that the accused was misled to his prejudice.

DECLARATIONS-RES GESTAE.-In case of homicide resulting from an operation performed by the accused upon the body of the deceased to bring about an abortion, the declaration of the deceased made at the time she was introduced to the accused, to the effect that she was pregnant, and which had direct reference to the contemplated transaction between deceased and the accused, is admissible in evidence as a part of the res gestae.

ABORTION WHEN COMMITTED.-Under the statutes of Idaho, the crime of abortion may be committed prior to the quickening of the foetus, but the rule is otherwise at the common law

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.


Edwin McBee, for Appellant.

"Q. State, now, if you saw her in the drug store, when you saw her there, in whose company and all the other circumstances and facts as far as you know of her visit there at the drug store." Until the corpus delicti is established, the testimony sought to be elicited by the above question under consideration was improper. (United States v Searcy, 26 F. 435; Taylor v. State, 101 Ind 63; Wharton on Criminal Evidence, 633; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N.W. 665; People v. Millard, 53 Mich. 63, 18 N.W. 564; People v. Aiken, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N.W. 821; 7 Am. & Eng. Ency. of Law, 863.) The court erred in overruling defendant's motion in arrest of judgment. This motion is made on the grounds that the indictment does not specify the year in which the alleged assault was made, and consequently it does not appear from the indictment that the deceased died within a year and a day from the infliction on her of the injuries described therein. We think it will be conceded that the indictment is bad. Had a demurrer been interposed on the grounds that no public offense is stated in the indictment, it certainly would have been allowed. (Rev. Stats. 7745.) No demurrer was interposed, but this motion was made under the provisions of chapter 7 of title 7 of the Penal Code. (Rev. Stats. 6567; People v. Wallace, 9 Cal. 31; People v. Cox, 9 Cal. 33.) An omission to state the year renders an indictment bad. (10 Am. & Eng. Ency. of Law, 513, note; Am. & Eng. Ency. of Pl. & Pr. 512, note; Commonwealth v. Hutton (Mass.), 5 Gray, 89, 66 Am. Dec. 352; Commonwealth v. Griffin, 3 Cush. 524; 4 Blackstone's Commentaries 375.) The court erred in giving instruction No. 3, as requested by the state. By this instruction the court informed the jury that the offense as set forth in the indictment constituted the crime of murder in the second degree or manslaughter. (Rev. Stats. 6565.) In this case the defendant took the position that he should either be convicted of murder or else acquitted. The indictment did not charge manslaughter and the evidence showed that the defendant was guilty of murder if guilty of any homicide, and a verdict for manslaughter could only be reached through a compromise. Jurors would reluctantly consent to a verdict for manslaughter who might never agree to a conviction for murder. Such instruction is reversible error. (State v. Punshon, 124 Mo. 448, 27 S.W. 1111; Virgil v. State, 63 Miss. 317; Dyal v. State, 97 Ga. 428, 25 S.E. 319; 4 Sharswood's Blackstone, 201, note.) The rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt in order to warrant a conviction does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if taking the testimony altogether the jury are satisfied beyond a reasonable doubt that the defendant is guilty. This instruction is taken bodily from Sackett's Instructions to Juries, section 34, page 647. It has been passed upon and condemned by the following authorities: People v. Aiken, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N.W. 821; State v. Gleim, 17 Mont. 17, 52 Am. St. Rep 655, 41 P. 998, 31 L. R. A. 294; Graves v. People, 18 Colo. 185, 32 P. 63; Marion v. State, 16 Neb. 349, 20 N.W. 289; Leonard v. Washington Ter., 2 Wash. Ter. 381, 7 P. 872; Clare v. People, 9 Colo. 122, 10 P. 799; 2 Thompson on Trials, sec. 2514. If this instruction was erroneous, it was prejudicial to defendant, and could not be cured by the other instructions given. (Holt v. Spokane etc. R. R., 3 Idaho 703, 35 P. 39; State v. Webb, 6 Idaho 428, 55 P. 892.)

Frank Martin, Attorney General, for the State.

The contention of the defendant that it is necessary to prove the corpus delicti before the defendant can be convicted is true, but it is not true, as he contends, that no evidence connecting the defendant with the offense can be introduced until both propositions constituting the corpus delicti, viz., proof of the death of the deceased, and proof that his death was criminal, are proved. It has been repeatedly held that a voluntary confession, although of itself insufficient to prove that a crime has been committed, is competent evidence of such fact, and may, with slight corroboration, establish the corpus delicti as well as the guilt of the person making the confession. (Sullivan v. State, 58 Neb. 796, 79 N.W. 721, and cases there cited; People v. Jones, 123 Cal. 65, 55 P. 698; State v. Jacobs, 21 R. I. 259, 43 A. 31; Tidwell v. State, 40 Tex. Cr. App. 38, 47 S.W. 466, 48 S.W. 184.) A definite charge of the commission of a public offense is laid against the defendant so plain that "he who runs may read," and the mere fact that the year was omitted could not prejudice the substantial rights of the defendant. He should have raised the objection by demurrer, and having failed to do so the objection was waived. (Idaho Rev. Stats., sec. 7960; In re Alcorn, ante, p. 101, 60 P. 561; People v. Squires, 99 Cal. 327, 33 P. 1092; State v. Schieler, 4 Idaho 120, 37 P. 272.) Only such objections to the instructions will be entertained by the court as are well taken and show that the erroneous instruction was prejudicial to the defendant; but where, as in this case, the defendant is accused of murder and an erroneous instruction is given as to manslaughter, and the defendant is convicted of the lower offense--manslaughter--he could not have been prejudiced by the instruction. ( People v. Swift, 5 P. 505, 66 Cal. 348; People v. Gordon, 26 P. 502, 88 Cal. 422.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.



The appellant was tried upon an indictment charging him with the murder of one Cora A. Burke, resulting from a criminal operation performed by appellant for the purpose of bringing about an abortion; was convicted by a jury of manslaughter, and adjudged to serve a term of seven years in the state penitentiary; moved for a new trial, which was denied; and appealed, both from the judgment and from the order denying him a new trial. The record is quite voluminous, but we have given to the same our careful attention, and from the record we summarize the facts, as shown by the evidence at the trial, as follows:

The deceased was twenty years old, and had been married, but her husband had been dead about five months. She had one child, a son about four years old. She lived in her own home, her father and mother living with her. She was in apparent good health up to June 21, 1899, Some time in May 1899, Mrs, Martha Johnson, at the request of the deceased, introduced the deceased to the appellant, who had been practicing medicine for a short time in the town of Harrison, in said Kootenai county. Before being introduced to appellant, the deceased inquired of Mrs. Johnson as to the appellant, asking if he was a good doctor, and stating at the time that she was...

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