State v. Crook

• Decision Date: 03 February 1898
• Docket Number: 880
• Citation: 51 P. 1091,16 Utah 212
• Court: Utah Supreme Court
• Parties: STATE v. JOSEPH E. CROOK

51 P. 1091

16 Utah 212

STATE v. JOSEPH E. CROOK

No. 880

Supreme Court of Utah

February 3, 1898

Appeal from the Fourth district court, Utah county. W. N Dusenberry, Judge.

Joseph E. Crook was indicted for attempting to procure an abortion. His plea of former acquittal was overruled, and he appeals.

Reversed and remanded.

S. K King and Rawlins, Thurman, Hurd & Wedgwood, for appellant

A. C Bishop, Atty. Gen., and Benner X. Smith, for the State.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

In this case the record discloses that on the 21st day of September, 1896, complaint in writing was filed, on the oath of Alexander Wilkins, before Charles De Moisey, justice of the peace of Provo precinct, Utah county, Utah, alleging that Joseph E. Crook, on the 19th day of June, 1896, at Payson precinct, Utah county, state of Utah, unlawfully, and willfully supplying, providing, and administering to one Rachel Davis, a pregnant woman, a certain drug, medicine, and substance, to wit, fluid extract of ergot, and did then and there procure said Rachel Davis to take said medicine, drug, and substance, and did then and there use and employ, and procure and counsel, her, the said Rachel Davis, to use and employ upon her person a certain instrument, to wit, a catheter, with intent then and thereby to procure a miscarriage of her, the said Rachel Davis, and deliver her of the said child whereof she was pregnant as aforesaid, the same not being necessary to preserve the life of her, the said Rachel Davis. An examination was had, and witnesses were sworn on behalf of the people. The defendant offered no evidence upon the examination. At the close of the case the justice made the following docket entry, signed by him: "It appearing to me that the offense as charged in the complaint has been committed, and that there is sufficient cause to believe the defendant guilty thereof, I order that he be held to answer the same, and I have admitted him to bail in the sum of $ 800 on the undertaking filed herein." The foregoing transcript of the justice's docket was filed in the district court. The papers in the case were also filed. On the back of the complaint was the following order: "It appearing to me that the offense of procuring an abortion has been committed, and there is sufficient cause to believe the defendant, Joseph E. Crook, guilty thereof, I order that he be held to answer the same, and I have admitted him to bail on the undertaking hereunto annexed." On the 5th day of October, 1896, the county attorney of Utah county filed an information reciting that the defendant, having been duly bound over by Charles De Moisey, a committing magistrate of Utah county, to answer to this charge, did on 19th day of June, 1896, at the county of Utah, state of Utah, commit a felony, by then and there unlawfully, willfully, and feloniously supplying to one Rachel Davis, she, the said Rachel Davis, being then and there a woman pregnant with child, a certain drug, to wit, fluid extract of ergot, with intent thereby then and there to procure the miscarriage of her, the said Rachel Davis, and deliver her of the said child whereof she was pregnant as aforesaid, the same not being necessary to preserve the life of her, the said Rachel Davis. On the 16th day of October, 1896, the defendant filed his demurrer to this information, upon the ground that the facts shown therein did not constitute a public offense, and that it did not conform to the requirements of sections 150 and 151 of the Code of Criminal Procedure of Utah. Upon this demurrer the court made the following order: "State of Utah v. Joseph E. Crook. In this cause defendant's demurrer to information filed herein came on to be heard. After hearing the arguments of counsel for the respective parties hereto, the court, being advised, renders its conclusions of law and sustained the demurrer. Further ordered that the defendant be, and he is hereby, discharged. A. C. Hatch, Judge." On the 29th day of June, 1897, an information, on which the defendant was tried and convicted, was filed, reciting the examination and committal, of the defendant by J. E. Page, a committing magistrate. This information charges the defendant with administering a drug, and causing the use of a catheter, on the same day and in the same manner as charged in the previous information filed, with the intent then and there to procure a miscarriage on the said Rachel Davis. The witnesses sworn on this examination, the names of whom were indorsed on the information, were the same as those indorsed and sworn on the prior information. The defendant in due time entered his plea of former acquittal to this information, alleging, in specific terms, that he had previously been charged by information with the same identical felony and offense as is charged in this information; that his demurrer to said prior information for the same offense had been sustained by the court, and final judgment entered thereon; and that he had been acquitted and discharged by the court of and from said crime and charge. Without waiving said plea, defendant pleaded not guilty. Upon the trial it appears that this information charged the same crime and offense, between the same parties, at the same time and place, as that charged in the former information for which the court had ordered the defendant discharged, without directing that he be held to answer another information or that the cause be submitted to the grand jury.

Section 4507, Comp. Laws Utah 1888, is found in the statute under title of "Abortions." Under section 23, art. 6, of the constitution, the subject of a law should be clearly expressed under its title. The statute referred to reads as follows: "Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable," etc. Section 5046, Comp. Laws Utah 1888, provides that upon a trial for procuring, or attempting to procure, an abortion, etc., the defendant cannot be convicted on the testimony of the woman, unless corroborated. The legislature enacted section 4507, and entitled it "Abortions." It enacted section 5046, and provided that, upon trial for attempting to procure an abortion, certain evidence was necessary. Webster defines "abortion" to be the act of giving premature birth; particularly the expulsion of the human foetus prematurely, or before it is capable of sustaining life; miscarriage. The same author defines "miscarriage" as the act of bringing forth before the time; premature birth. As generally used and understood in common language, the "procuring of an abortion" means substantially the same as "procuring a miscarriage." Our statutes, when construed together, recognize these terms as having practically the same meaning in characterizing the crime, but the criminal act of destroying the foetus at any time before birth is usually termed in law procuring a miscarriage. In charging the offense in an indictment or information, it is necessary to charge the offense named in the statute. The charge contained in the complaint and in the information to which the demurrer was sustained was within the terms of the statute.

The examining magistrate made and entered in his docket containing the complaint and proceedings, a transcript of which was filed with the court, the following order: "It appearing to me that the offense as charged in the complaint has...