State v. Bridges, 51890
Decision Date | 13 February 1967 |
Docket Number | No. 51890,No. 1,51890,1 |
Citation | 412 S.W.2d 455 |
Parties | STATE of Missouri, Respondent, v. William Cullen BRIDGES, Appellant |
Court | Missouri Supreme Court |
Taken as submitted by appellant.
David M. Grant, St. Louis, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
HOUSER, Commissioner.
This is an appeal by William Cullen Bridges, a licensed physician, who was indicted under § 559.100 1 and convicted by a jury of manslaughter, by procuring an abortion on Rose Davenport, a pregnant 13-year-old female.
The first question is whether the indictment is sufficient to support this conviction. Under Criminal Rule 28.02, V.A.M.R. this Court is required to render judgment on the sufficiency of the indictment upon the record before us, whether or not the question is raised by assignment of error.
The judgment of conviction must be reversed because the indictment is fatally defective.
The pertinent part of § 555.100 follows:
'Any person who, with intent to produce or promote a miscarriage or abortion, * * * uses upon (a woman) * * * any instrument * * * to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, * * *), shall, in event of the death of said woman, * * * being thereby occasioned, upon conviction be adjudged guilty of manslaughter, * * *.' (Emphasis ours.)
The indictment charged that defendant, between August 1 and 7, 1964, in the City of St. Louis, 'in and upon the body of one ROSE DAVENPORT, she the said ROSE DAVENPORT being then and there pregnant, unlawfully, wilfully and feloniously did then and there employ, use, insert, thrust and force a certain instrument, the exact nature and description of which is to this informant unknown, into the body, private parts and womb of her, the said ROSE DAVENPORT: that the said WILLIAM CULLEN BRIDGES was a duly licensed physician and that a miscarriage and abortion was not then and there necessary to preserve the life of an unborn child of which said ROSE DAVENPORT was then and there pregnant, as aforesaid; that by means and in consequence of the unlawful, wilful and felonious use and employment of said instrument by the said WILLIAM CULLEN BRIDGES in and upon the body, private parts and womb of the said ROSE DAVENPORT, as aforesaid, she, the said ROSE DAVENPORT, then and there became and was greatly injured, wounded and mortally diseased of her body and then and there did die on the 7th day of August, 1964 of the said injury, wound and mortal disease; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'
The indictment fails to allege that the abortion was not necessary to preserve the life of Rose Davenport, as required by the wording of § 559.100 above italicized, and thus fails to negative one of the exceptions contained in the statute defining the offense. The same situation confronted this Court in State v. Meek, 70 Mo. 355, in which case this Court stated, 70 Mo. l.c. 357:
State v. Meek, supra, has been cited with approval on this proposition for nearly 90 years. It is firmly embedded in the case law of this state. State v. O'Brien, 74 Mo. 549; State v. Casto, 231 Mo. 398, 132 S.W. 1115(3); State v. De Groat, 259 Mo. 364 168 S.W. 702; State v. Ackley, Mo.Sup., 183 S.W. 291(1) ( ); State v. Mikel, Mo.Sup., 278 S.W. 670. Perhaps the most often quoted statement of the rule and its qualifications is that of Judge Faris in State v. De Groat, supra, 168 S.W., l.c. 705:
In State v. Mikel, supra, an information charging manslaughter by abortion failed to negative the statutory exception 'if such person is not a duly...
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