State v. Belyea
| Citation | 83 N.W. 1,9 N.D. 353 |
| Decision Date | 02 June 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ramsey County; Morgan, J.
E. H Belyea was convicted of crime, and appeals.
Reversed.
Judgment reversed, and a new trial ordered.
Joseph Denoyer, M. H. Brennan, and Cochrane & Corliss, for appellant.
As against defendant's demurrer, the information was sustained under subd. 3, § 7058, Rev. Codes. The information does not, in terms, cover the class of crime this section was intended to reach; and the language of the information is not broad enough to cover this section. The information does not aver that the acts were perpetrated without design to effect death and while defendant was engaged in the commission of a felony. State v Emerich, 5 Laws. Cl. Df. 1116, 87 Mo. 110. As a rule of criminal pleading, an indictment bottomed on a statute must contain all those forms of expression, those descriptive words which bring the defendant precisely within the definition of the statute. State v. Emerich, 5 Laws Cl. Df. 1116; State v. Helm, 6 Mo. 264; 9 Am. & Eng. Enc. L. 626, note 1; Nichols v. State, 46 Miss. 284; Kerr on Hom., § § 247 and 248. The legislature having declared whe the death of a pregnant woman is accomplished by an attempt to produce a miscarriage upon her, under certain circumstances, that it is manslaughter only, no form of allegation varying the facts can make the act murder. By § 7086, the intent to destroy a "quick child" is the feature which makes the offense of abortion manslaughter in case death results to either the child or mother. It is strange if a person, when he only intends a miscarriage on a pregnant woman, which involves no attempt to take life, the foetus not being alive (§ 7177), can, in case death ensues, be held for murder; while, if he intends to destroy a live child the offense is manslaughter only. In other words, if there is no intent to kill, but death ensue, the defendant may be punished by imprisonment for not less than ten years, and from that to thirty years (§ 7069); but if he intends to kill and succeeds he can only get from five to fifteen years (§ 7070). Lohman v. People, 1 N.Y. 379, 49 Am. Dec. 341; Kerr on Hom. § 161; State v. Emerich, 5 Laws. Cl. Df. 1117; Com. v. Railing, 113 Pa. 37, 6 Am. Cl. Rep. 7, 1 A. 314, 4 A. 459; State v. Cooper, 22 N.J.L. 52, 3 Laws. Cl. Df. 343; Evans v. People, 49 N.Y. 86; People v. Olmstead, 30 Mich. 431; State v. Smith, 54 Am. Dec. 607, 5 Laws. Cl. Df. 981, 33 Me. 48. It was not an offense at common law to produce an abortion upon a pregnant woman, with her consent, if she was not quick with child. Mitchell v. Com., 39 Am. Rep. 227; Com. v. Bangs, 9 Mass. 387; Com. v. Parker, 9 Metc. 263; State v. Cooper, 51 Am. Dec. 249; People v. Sessions, 26 N.W. 291; Smith v. State, 54 Am. Dec. 607; Taylor, Med. Jur. 526. The legislature created two classes of offenses. The attempt to produce a miscarriage upon a pregnant woman, intending miscarriage only, and an attempt to produce a miscarriage upon a woman pregnant with a quick child, with intent to destroy the child, where death results. The offense originates in the statute defining it. People v. Olmstead, 30 Mich. 431. The information is insufficient under § 7177, Rev. Codes, because it charges that the use of an instrument was not necessary to save life and does not aver that the miscarriage was unnecessary. State v. Stevenson, 68 Vt. 527, 35 A. 470; Bassett v. State, 41 Ind. 313; Willie v. State, 46 Ind. 363; State v. Lee, 37 A. 79. The offense is named in the caption of the information as murder. The facts charged in the body of the information do not indicate to defendant that he is accused of an attempt to procure a miscarriage. A proper designation of the crime is essential to a valid information. § 8040, Rev. Codes; Subd. 2, § 8039, Rev. Codes; § 8047, Rev. Codes; Johnson v. State, 26 Ark. 329; Brooks v. Com., 32 S.W. 403; People v. Dumar, 106 N.Y. 509. This variance between the crime charged and the facts charged is fatal to the information. People v. Maxon, 57, Hun. 367, 10 N.Y.S. 593; People v. Dumar, 106 N.Y. 510, 13 N.E. 325; Brooks v. Com., 98 Ky. 143, 32 S.W. 403. The jury were instructed that this information charged both the crime of murder in the second degree, and also the crime of abortion. This ruling of the trial court became the law of the case. Roehr v. Ry. Co., 7 N.D. 97, 72 N.W. 1084. And the information is bad for duplicity. § 8042, Rev. Codes; Territory v. Dooley, 4 Mont. 295, 1 P. 747; State v. Marcks, 3 N.D. 532; State v. Smith, 2 N.D. 515. The information cannot be sustained under Subd. 3, § 7058, Rev. Codes, because it contains no averment that the act was perpetrated without design to effect death. State v. Emerich, 5 Laws. Cl. Df. 1113. And also because it does not aver that the act was done while defendant was engaged in the commission of a felony, and a felony other than the one with which he is charged. Foster v. People, 50 N.Y. 603; State v. Shock, 3 Am. Cl. Rep. 186, 192, 68 Mo. 555; People v. Butler, 5 Park. 377; People v. Rector, 19 Wend. 605; People v. Skeehan, 49 Barb. 217. The verdict is a nullity because not responsive to the indictment. Abortion is not named as a crime in the statute. Flourien v. State, 8 Ohio Dec. 171; Am. Dig. 1898. Title Abortion, § 6. Punishment can only be imposed when the information is based upon the statute under which the sentence is imposed. Boody v. People, 43 Mich. 34, 4 N.W. 573; People v. Jones, 14 N.W. 543, 49 Mich. 591. Unlawfully procuring an abortion was not the crime named in the information. Brooks v. Com., 32 S.W. 403. The statute contemplates two kinds of verdict, general and special. Under a plea of not guilty a conviction of the offense charged in the information is had by the simple verdict "guilty." § 8235, Rev. Codes. When the crime is distinguished into degrees, on conviction, the jury must find the degree. § 8242, Rev. Codes. Unlawfully procuring an abortion is not a degree of homicide. State v. Marcks, 3 N.D. 537; State v. Johnson, 3 N.D. 150. The statute authorizing a conviction of any offense included in that with which defendant is accused, relates only to that class of offense of which there are different degrees, and has no application to a case where the crime charged has no degrees. State v. Johnson, 3 S.W. 868; State v. Burke, 2 S.W. 10; People v. Keiffer, 18 Cal. 637; State v. White, 45 Ia. 325; Turner v. Muskegon, 50 N.W. 310; Territory v. Dooley, 1 P. 747. Where offenses are defined as distinct crimes in the statute under indictment for one, a conviction of the other cannot be had. State v. Pierce, 4 Blackf. 318; State v. Shear, 8 N.W. 287; 1 Whart. Cl. L. 564; Kinkelly v. State, 43 Wis. 604; State v. Hooks, 33 N.W. 57; State v. Yanta, 38 N.W. 333; 1 Bish. Cl. L. § 704. The verdict is not sufficient as a special verdict. § 8236, Rev. Codes; Miller v. People, 25 Hun. 473; People v. Wells, 8 Mich. 103; Com. v. Chatham, 88 Am. Dec. 539; State v. Spray, 18 S.E. 700; State v. Ewing, 13 S.E. 10. The repeated assertion of matters by the attorney general in his closing argument, of which there was no proof in the case, were prejudicial. People v. Fielding, 158 N.Y. 542, 46 L. R. A. 661, note; People v. Aikin, 33 N.W. 821; Exon v. State, 26 S.W. 1088; Clarke v. State, 5 S.W. 115. The testimony of Sampson as to his conversation with defendant's brother, in October, that a prescription was given to produce an abortion, and the instruction of defendant's brother as to the girl's treatment not having been made in the presence or hearing of defendant, was highly prejudicial. Com. v. Felch, 132 Mass. 32; Owens v. State, 74 Ala. 401; State v. Weaver, 57 Ia. 730; Binns v. State, 57 Ind. 46; Cox v. State, 8 Tex.App. 354; State v. Moberly, 26 S.W. 356; People v. Erwin, 20 P. 59; Williams v. Dickinson, 9 South. Rep. 851; McGraw v. Com., 20 S.W. 279; Train v. Taylor, 4 N.Y.S. 493.
P. J. McClory, State's Attorney, and John F. Cowan, Attorney General, for the State.
The information sufficiently charges murder in the second degree within the meaning of Subd. 3, § 7058, Rev. Codes; State v. Moore, 25 Ia. 128. And under the information it was competent for the jury to convict of the offence described in § 7177, Rev. Codes. State v. Maloney, 7 N.D. 119, 72 N.W. 927; § 8244, Rev. Codes; State v. Young, 40 P. 659; Rhodes v. State, 27 N.E. 866. The indictment is not bad for duplicity because in setting out the manner in which it was committed, or the means employed for its accomplishment, facts are charged which also constitute another crime under the statute. Herron v. State, 42 N.E. 541; Thomas v. State, 26 S.W. 729; Thompson v. State, 34 S.W. 639, 10 Enc. Pl. & Pr. 534; Byrne v. State, 12 Wis. 519; Hauk v. State, 46 N.E. 127; Farrell v. State, 24 A. 723; State v. Johnson, 30 N.J.L. 185; Scott v. People, 30 N.E. 329; State v. Watson, 1 P. 770; McKinsie v. State, 40 Am. St. Rep. 795; State v. Burrell, 8 P. 470; Benn v. State, 58 Am. Dec. 238; People v. Aikin, 11 Am. St. Rep. 512; State v. Belle, 92 Am. Dec. 661; People v. Aultman, 47 N.E. 180; Lehman v. People, 48 Am. Dec. 340.
The defendant was charged with the crime of murder in the second degree by an information filed in the District Court by the state's attorney of Ramsey county. After a plea of not guilty, the issues were tried by a jury, and the following verdict was returned into court and recorded: "We, the jury, find the defendant E. H. Belyea guilty of the crime of unlawfully procuring an abortion, as charged in the information." Upon said verdict the trial court, on July 8, 1899, entered a judgment of conviction, and thereby sentenced the defendant to serve a term of three years at hard labor in the penitentiary at...
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