State v. Bly

• Decision Date: 27 July 1906
• Docket Number: 14,748 - (26)
• Citation: 108 N.W. 833,99 Minn. 74
• Parties: STATE v. THERON H. BLY
• Court: Minnesota Supreme Court

108 N.W. 833

99 Minn. 74

STATE v. THERON H. BLY

Nos. 14,748 - (26)

Supreme Court of Minnesota

July 27, 1906

Appeal by defendant from an order of the district court for Hennepin county, Dickinson, J., denying a motion for a new trial after a trial and conviction of the crime of abortion. Affirmed.

SYLLABUS

Abortion -- Indictment.

A criminal indictment is sufficient which charges: "The said * * * did, * * * and with the intent to produce the miscarriage of a woman, , * * * being then and there pregnant with child, * * * use and employ in and upon the body and person of the said certain instruments and other means, a more particular description of * * * said instruments and other means being to the grand jurors unknown, and the said did then and there and thereby produce the miscarriage of the said ," etc.

Verdict -- Evidence.

The evidence is sufficient to support the verdict of guilty although it does not appear what particular kind of instrument was used or in what manner the defendant operated in and upon the body to accomplish the result.

Res Gestae.

Not error to exclude certain declarations claimed to be a part of the res gestae.

R. L. Penney, W. E. Dodge, and E. L. Sutton, for appellant.

Edward T. Young, Attorney General, Charles S. Jelley, Assistant Attorney General, and Al. J. Smith, County Attorney, for the State.

OPINION

LEWIS, J.

Appellant was convicted under the following indictment, and the first point urged is that the indictment does not state facts sufficient to constitute a public offense:

Theron H. Bly is accused by the grand jury of the county of Hennepin, in the state of Minnesota, by this indictment, of the crime of abortion, committed as follows: The said Theron H. Bly on the sixth day of December, A.D. 1904, at the city of Minneapolis, in said Hennepin county, then and there being, did wilfully, unlawfully, wrongfully, knowingly, and feloniously, and with the intent to produce the miscarriage of a woman, to wit, one Hilda Rosen, said Hilda Rosen being then and there pregnant with child, prescribe for and supply to the said Hilda Rosen certain medicine and drugs, and use and employ in and upon the body and person of the said Hilda Rosen certain instruments and other means, a more particular description of said medicine and drugs and said instruments and other means being to the grand jurors unknown, and the said Theron H. Bly did then and there and thereby produce the miscarriage of the said Hilda Rosen, said medicine and drugs, and the use of said instruments and other means, and such miscarriage not being then and there necessary to preserve the life of the said Hilda Rosen, or of the child with which she, the said Hilda Rosen, was at said time pregnant, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Minnesota.

Our statute upon the subject is as follows:

A person, who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve the life of the woman or of the child with which she is pregnant, either: (1) Prescribes, supplies or administers to a woman whether pregnant or not, or advises or causes a woman to take any medicine, drug or substance; or (2) uses, or causes to be used, any instrument or other means -- is guilty, etc. G.S. 1894, § 6545.

We consider the indictment good; but the criticism is that it does not inform the defendant of the cause of the accusation as provided by the Bill of Rights; that the charging part, and person "and use and employ in and upon the body of the said Hilda Rosen certain instruments and other means" "being to the grand jurors unknown," is insufficient; that the party charged is not furnished with a reasonably specific statement as to the character of instruments or "other means" and the manner of their use.

Appellant claims that the indictment merely charges the definition of a crime by its statutory name and that it was accomplished by means to the grand jury unknown, and, the state having elected to abandon the charge that drugs or medicines were used and stand on the allegation of the use of instruments and other means, the jury were permitted to enter the field of conjecture and guess what means were used.

The principal case cited in support of this criticism is Cochran v. People, 175 Ill. 28, 51 N.E. 845. We have read the case with care, but are unwilling to adopt the reasoning. The charge was in the following language: "Did unlawfully and feloniously administer and use on one Stella Roberts, then and there being a woman pregnant with child, a certain instrument, the name of which is to the grand jurors unknown, with the intent then and there," etc. The statute read: "Whoever by means of any instrument, medicine, drug or other means whatever causes," etc. The court held the indictment bad because it was not stated in what manner the instrument was used, but admit it would have been sufficient had Baker v. People, 105 Ill. 452, been followed. In that case the particular place of inserting the instrument was stated. We see no merit in the suggestions that the offender was taken by surprise and unable to prepare his defense simply because it was not stated in what particular manner the instrument was used.

However, in the indictment before us the charge is that appellant employed in and on the body of Hilda Rosen, a pregnant woman, certain instruments and other means to the grand jury unknown, with intent to produce a miscarriage, and by such means did produce a miscarriage. Here is a direct charge that the person operated upon was pregnant, that a miscarriage was produced, that it was produced by appellant, and he did so by operating in and on her body, that the purpose of so operating was to bring about the result accomplished, and that in so doing he used instruments or operated in and on her body in some other way unknown. This is as far as the state may reasonably be required to go in stating the particulars in such cases. That it does not sufficiently notify the offender of the nature of the charge to enable him to prepare for trial has no reasonable foundation. That his defense could possibly turn or depend on the exact instrument or method of operation is not within the realm of possibility. Every essential item is set out for his enlightenment -- the time, place, woman, her condition, and the fact of miscarriage by his operations upon and in her body.

An instance where the indictment is sufficient, when set forth in the statutory language, is found in State v. Evans, 88 Minn. 262, 92 N.W. 976. The charge was swindling, and was alleged to have been accomplished "by the use and means of three-card monte so-called, and the forms and devices of sleight of hand, a more particular description of which is to the grand jury unknown, from one August Northrop, by the use of cards and instruments of like character more particular description of which is to the grand jury unknown," etc. In sustaining the indictment, which followed the statute (G.S. 1894, § 6595), the court said: "The statute is sufficiently precise and certain when we consider the infinite number of ways in which swindling by cards and other means or devices may be perpetrated, and the ingenuity of men who are engaged in that class of crime."

Another case which illustrates the principle that no more is required in charging a crime than the circumstances of the case will permit is the noted case of Com. v. Webster, 5 Cush. 295, 321, 52 Am. Dec. 711. The count under consideration was as follows: "That the said John W. Webster, at Boston aforesaid, in the county aforesaid, in a certain building, known as the 'Medical College,' there situate, on the twenty-third day of November last past, in and upon the said George Parkman, feloniously, wilfully, and of his malice aforethought did make an assault, and him, the said George Parkman, in some way and manner and by some means, instruments, and weapons to the jurors unknown, did then and there feloniously, wilfully, and of malice aforethought deprive of life, so that he, the said George Parkman, then and there died," etc.

In holding the count good the court said: "From the necessity of the case, we think it must be so, because cases may be imagined where the death is proved, and even where remains of the deceased are discovered and identified, and yet they may afford no certain evidence of the form in which the death was occasioned, and then we think it is proper for the jury to say that it is by means to them unknown. * * * The rules of law require the grand jury to state their charge with as much certainty as the circumstances of the case will permit; and if the circumstances will not permit a fuller and more precise statement of the mode in which the death is occasioned, this count conforms to the rules of law."

We also consider the evidence sufficient to support the verdict of guilty. Hilda Rosen was unmarried, about twenty five years of age, in good health, and resided with and kept house for her father at Two Harbors, Minnesota. The father was a widower with several children. The defendant, Theron H. Bly, was a licensed physician of Minneapolis, claiming to be a specialist in diseases of women, and in charge of Bly's Private Sanatorium for Women. In August, 1904, Hilda Rosen wrote to the defendant, and in reply to her letter received the following letter from Bly:

T. H. Bly, M.D. Twenty Seven Years in Practice. Specialist in all Diseases of Women. Physician in Charge of Bly's Private Sanatorium for Women, Before and During Confinement. Everything Confidential. Office Address: 412 Nicollet Ave., Rooms 8 and 9, Third Floor.

Minneapolis, Minn., Aug. 10, 1904.

Hilda Rosen:

Yours at hand today with...