State v. Emerich

• Decision Date: 31 October 1885
• Citation: 87 Mo. 110
• Parties: THE STATE, Appellant, v. EMERICH.
• Court: Missouri Supreme Court

87 Mo. 110

THE STATE, Appellant,

v.EMERICH.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

B. G. Boone, Attorney General, for the state.

The indictment is sufficient under General Statutes, section 7, page 778 (2 Wag. Stat., sec. 7, chap. 42, art. 2.) now section 1238, Revised Statutes. The defendant attempted, without a design to effect death, to produce an abortion, and the death of the woman ensued from such attempt. This was murder at the common law. 1 Hale's Pleas Cr. (1 Am. Ed.) secs. 429, 430; Reg. v. Gaylor, 7 Cox Cr. C. 253; 1 Whar. on Cr. L. (8 Ed.) secs. 316, 390; Whar. on Hom. (2 Ed.) secs. 41, 192; Commonwealth v. Keeper of Prison, 2 Ashmead (Penn.) 227; Commonwealth v. Jackson, 15 Gray (Mass.) 187; State v. Moore, 25 Iowa, 128. The perpetration of an abortion on a woman pregnant, but not quick with child, is, under our statute, only a misdemeanor. Wag. Stat., chap. 42, art. 2, sec. 34, p. 450; R. S., sec. 1268. The defendant was attempting to perpetrate an offence, which, in itself, was a misdemeanor under our statute; from his act a killing resulted, which was murder at the common law, and he was properly indicted under section 7, page 778, General Statutes; section 1238, Revised Statutes, for manslaughter in the first degree.

R. W. Goode also for the state.

The indictment was drawn under sections 7, page 446 and section 34, page 450, Wagner's Statutes. In the attempt to procure an abortion, defendant committed manslaughter in the first degree, by using an instrument upon a pregnant woman, whereby her death resulted under such circumstances as would be murder at the common law. The pleader properly omitted charging that Maggie Gibbons was “quick” with child, and properly substituted therefor the phrase ““pregnant” and “big with child,” as by said sections seven and thirty-four, above cited, required.

Chas. P. and John D. Johnson for respondent.

(1) Under the indictment there could be no conviction of either manslaughter in the first or second degree. Wag. Stat., chap. 42, art. 2, secs. 9, 10, 34. (2) The court erred in giving instructions to the jury concerning manslaughter in the first or second degrees; and in refusing to give the instructions prayed for by defendant. (3) The verdict was contrary to the law and the evidence. The verdict should have been for a misdemeanor under section thirty-four, chapter forty-two, article two, Wagner's Statutes, and not for manslaughter in the first, or any other degree, if the court could, by any possibility, construe the indictment as setting forth facts sufficient to charge a misdemeanor, and that it had jurisdiction to try the same.

SHERWOOD, J.

The indictment in this cause is as follows:

“STATE OF MISSOURI,

)

)

SS.

CITY OF ST. LOUIS.

)

St. Louis Criminal Court, March Term, 1879.

The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, aforesaid, now here in court, duly empanneled, sworn and charged upon their oath, present that Charles P. Emerich, late of St. Louis City aforesaid, on the thirtieth day of December, 1877, with force and arms in and upon the body of one Maggie Gibbons, a woman there and then pregnant and big with child, in the peace of the state then and there being, did wilfully, feloniously and unlawfully make an assault, and then and there unlawfully and feloniously use and employ in and upon the body and womb of the said Maggie Gibbons, a certain instrument of hard substance, the nature and description whereof is to these grand jurors unknown, by then and there inserting, thrusting and forcing the said instrument into the private parts and womb of the said Maggie Gibbons, with the intent then and there, and thereby to procure an abortion or miscarriage of said Maggie Gibbons, the same not being necessary to preserve the life of said Maggie Gibbons, and not being advised by a physician to be necessary for the pupose, and by means and in consequence of the employment and use of said instrument in and upon said Maggie Gibbons by the said Charles P. Emerich aforesaid, she, the said Maggie Gibbons, then and there became gravely wounded and mortally diseased of her body, and from the said thirtieth day of December, A. D. 1877, to the third day of January, A. D. 1878, in the city of St. Louis, did languish, and languishing did live, on which said third day of January, in the year and at the city aforesaid, the said Maggie Gibbons, of the mortal wound and disease aforesaid, did die; and so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Charles P. Emerich, the said Mary Gibbons in the manner and by the means aforesaid, wilfuly, feloniously and unlawfully did kill, slay and murder contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.

‘E. A. NOONAN,

Assistant Circuit Attorney.”

Upon this indictment the defendant was tried, found guilty of manslaughter in the first degree, and his punishment was assessed at imprisonment in the penitentiary for the period of five years. The various statutory provisions relating to the crime of abortion or attempted abortion, are as follows:

“Section 1241. Manslaughter in second degree. Every person who shall administer to any woman, pregnant with a quick child, any medicine, drug, or substance whatsoever, or shall use or employ any instrument, or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for that purpose, shall, if the death of such child or mother thereof ensue from the means so employed, be deemed guilty of manslaughter in the second degree.” G. S., p. 778, sec. 10.

“Section 1268. Abortion. Every physician or other person who shall wilfully administer to any pregnant woman, any medicine, drug, or substance whatsoever, or shall use or employ any means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon...