State v. Atwood

• Decision Date: 01 June 1909
• Parties: STATE v. ATWOOD et al.
• Court: Oregon Supreme Court

102 P. 295

54 Or. 526

STATE v. ATWOOD et al.

Supreme Court of Oregon

June 1, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

C.H Atwood and another were convicted of maintaining a nuisance and they appeal. Affirmed.

M.B. Meacham, for appellants.

A.M Crawford, Atty. Gen., and George J. Cameron, Dist. Atty., and J.H. Page, for the State.

EAKIN J.

Defendants were indicted by the grand jury of Multnomah county for the crime of committing an act grossly disturbing the public peace and health, openly outraging public decency, and injurious to public morals; the charge being in the following language: "That the said C.H. Atwood and C.H.T. Atwood on the 1st day of January, 1908, then and there unlawfully conspiring, confederating, and agreeing with each other thereto, did on said day, in the said county and state willfully and wrongfully set up, equip, furnish with apparatus, and thence continuously until the 1st day of November, 1908, keep and maintain a certain public house and public place, known as a 'maternity hospital,' with the intent and purpose of them, the said C.H. and C.H.T. Atwood, of willfully, wrongfully, and unlawfully committing, producing, and procuring abortions in said house and place upon women pregnant with child, and so having set up, furnished, equipped, kept, and maintained the said house and place with the intent and for the purpose aforesaid, the said C.H.T. Atwood and C.H. Atwood, on the 4th day of September, 1908, in the said public house and place, known as the 'maternity hospital' aforesaid in the said county and state, did willfully and wrongfully commit and produce an abortion upon one Mahala Roberts, she, the said Mahala Roberts, then and there being a woman pregnant with child, and did then and there, between the said 1st day of January, 1908, and the said 1st day of November, 1908, willfully and wrongfully commit and produce upon women then and there pregnant with child, the names and numbers of which women are to the grand jury unknown, abortions, contrary to the statutes," etc. The defendants were tried thereon, and a verdict of guilty returned against them, and judgment and sentence pronounced against them thereon, from which this appeal is taken.

But one question is raised by the assignments of error, namely, "that the indictment upon which defendants were arraigned and convicted does not state facts sufficient to constitute a misdemeanor or crime"; defendants urging, first, that the acts were lawful acts, and were not exercised in such a manner as to openly outrage public decency, or be injurious to public morals; second, that the intent and purpose charged, unless followed by a public act, does not constitute a public nuisance; third, that no facts are alleged showing an unlawful abortion; fourth, that it is not unlawful to produce an unnecessary abortion, unless the woman is quick with child. Defendants' counsel insists that the facts alleged do not constitute a crime, because it is not alleged that the abortions were committed upon women quick with child, contending that otherwise producing abortions is lawful. Much of his argument is based upon this assumption, and he assumes that a necessary element in a violation of section 1748, B. & C. Comp., defining manslaughter by producing abortion, is that the woman be quick with child, and this view seems to be quite prevalent. This question has never been before this court for decision, and the writer of this opinion is not able to accept defendants' view. It seems to be an unsettled question whether producing an abortion was an offense at common law, except when the mother was quick with child. It is said in State v. Cooper, 22 N.J.Law, 52, 51 Am.Dec. 248, that there does not appear to have been any adjudication upon this point in England, and the judge in that case holds that, unless the mother was quick with child, an abortion was not an indictable offense at common law. To the same effect is Mitchell v. Commonwealth, 78 Ky. 204, 39 Am.Rep. 227; Commonwealth v. Bangs, 9 Mass. 387; Smith v. State, 33 Me. 48, 54 Am.Dec. 607. But in Mills v. Commonwealth,

13 Pa. 633, it is held that at the common law the offense was punishable, whether committed before or after the woman became quick. This view was approved and followed in Wells v. New England Life Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R.A. 327, 71 Am.St.Rep. 763. This is Wharton's view, also, in his Criminal Law (sections 1220-1228). The opinion in Mills v. Commonwealth, supra, is quoted with approval, and followed in State v. Slagle, 83 N.C. 632, and the opinion in State v. Cooper, says that 1 Russell on Crimes (2d Eng.Ed.) 540, and Roscoe's Criminal Evidence, 190, recognize the same view, and 3 Chitty's Criminal Law, at page 798, gives some precedents and forms which seem to sustain that view. However, this discussion relates to the offense of abortion at common law, not particularly pertinent to the interpretation of section 1748, B. & C. Comp., except possibly in so far as it may aid in ascertaining the full meaning of the term "pregnant with child," which does not seem to be ambiguous. That section provides that "if any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instruments or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." In prosecutions under this statute, if such act resulted in the death of the mother, this court only required proof of pregnancy, and not that she was quick with child ( State v. Clements, 15 Or. 237, 14 P. 410), and I believe no one will contend to the contrary; and, to sustain such a construction, the term "pregnant with child," as used in that section, designates the foetus throughout the period of gestation. The term "in case of the death of such child," which constitutes the consummation of the crime equally with the death of the mother, would seem to mean the death of the foetus, either before or after quickening. This is the view of the court in State v. Dickinson, 41 Wis. 309, under a statute identical with ours.

There is nothing lacking in this statute (section 1748) that requires a reference to the common law to aid in its interpretation. It specifically sets out the acts which shall constitute the crime. The common law recognizes the civil rights of an "unborn child," regardless of the stage of gestation. "An infant in ventre sa mere, or in its mother's womb, is supposed in law to be born for many purposes, *** and in this point the civil law agrees with ours." "Those who are in the womb are considered by civil law to be, in the nature of things, as they are capable of being benefited." 1 Blackstone, Comm. 130n; 1 Coke's Litt. 100a; 2 Coke's Litt. 244a. The term "en ventre sa mere" comes clearly within the description "a child living at the time of its father's death." Stedfast v. Nicoll, 3 Johns.Cas. (N.Y.) 18; Barker v. Pearce, 30 Pa. 173, 72 Am.Dec. 691; Thelluson v. Woodford, 4 Ves.Jr. 227. See Wharton on Crimes, §§ 1220-1228, as to when life begins. A posthumous child is in esse from the time of its conception. Pearson v. Carlton, 18 S.C. 47; 6 Words & Phrases, 5475; 2 Words & Phrases, 1127. In regard to descent, our statute, section 5590, B. & C. Comp., provides that a posthumous child shall be deemed living at the death of its parent. To the same effect is section 5554, relating to an unborn child not named in the will, which includes the whole time after conception. Northrop v. Marquam, 16 Or. 173, 18 P. 449. And it would seem that "pregnant with child," as used in section 1748, can bear no other construction. But we do not deem a decision of that question necessary to a disposition of this case, and therefore proceed without deciding it.

The indictment does not attempt to charge a violation of any statute in the procuring of abortions mentioned. Section 1930, B. & C. Comp., upon which this indictment is drawn provides that, "if any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished," etc. This section, generally known as the "nuisance statute," has been three times construed recently by this court, in State v. Nease, 46 Or. 433, 80 P. 897, State v. Ayers, 49 Or. 61, 88 P. 653, 10 L.R.A. (N.S.) 992, 124 Am.St.Rep. 1036, and State v. Waymire (Or.) 97 P. 46. In the first case it is held that it "was evidently intended to cover such offenses against the public peace, public health, common decency, and public morals, and such as grossly injure the person or property of another, which are not otherwise made punishable by the Code," and that whatever could have been punished at common law as injurious to public morals may now be punished under section 1930, if not made punishable by the Code, so that it is not essential that the acts complained of be declared by the Code to be crimes. In that case the acts complained of were not crimes under the statute, nor at common law. There are some nuisances in which the act complained of may be wrongful, but constitute a nuisance only by reason of its location or publicity, and there may be an act or condition that is rightful, or even necessary, but may become a nuisance by reason of its location or publicity. But there is also a class of nuisances arising from the use of real...