State v. Emerich

• Decision Date: 17 April 1883
• Citation: 13 Mo.App. 492
• Parties: STATE OF MISSOURI, Respondent, v. CHARLES P. EMERICH, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 492

STATE OF MISSOURI, Respondent,

v.CHARLES P. EMERICH, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 17, 1883.

APPEAL from the St. Louis Criminal Court, VAN WAGONER, J.

Reversed, and prisoner discharged.

C. P. JOHNSON, for the appellant.

W. C. JONAS, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The indictment charges that defendant, at St. Louis, on December 30, 1877, made an assault upon the body of one Maggie Gibbons, then and there pregnant and “big with child,” and then and there unlawfully and feloniously used and employed upon her womb an instrument of hard substance by forcing it into her womb with the intent to procure an abortion or the miscarriage of said Maggie Gibbons, the same not being necessary to preserve her life nor advised by a physician to be necessary for that purpose; that by means and in consequence of said employment of said instrument by defendant upon the body of said Gibbons, she was then and there mortally wounded, and languished until January 3, 1878, on which day she died of the mortal wound aforesaid, wherefore the jurors present that defendant, in the manner and by the means aforesaid, did unlawfully, wilfully, and feloniously kill and murder said Maggie Gibbons, contrary to the form of the statute, etc.

The jury found defendant guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for the term of five years. The sentence was in accordance with the verdict.

There was testimony tending to show the following state of facts:--

Maggie Gibbons was a girl of nineteen years of age, in the employ of defendant, who kept a laundry. He begot a child upon her body. After she was gone with child for a period of time variously stated by the physicians at from eight to sixteen weeks, the defendant, for the purpose of making her miscarry, used an instrument by which he so ruptured the womb, that the fœtus escaped into the abdomen, the necessary consequence of which was the death of both mother and child.

The physicians all testified, that it was formerly held in the profession that the fœtus was not alive until it was felt by the mother to move; and that, when this happened, it used to be said that she was “quick with child,” and not before; but that, in the present stage of medical science, it is known that the fœtus is quick from the moment of conception, in the sense that it is alive from that moment. There was medical testimony to the effect that it is not certain whether the sensation called “quickening” is attributable to the movement of the fœtus or to a movement of the womb itself at a certain stage of gestation; that women not pregnant sometimes erroneously suppose that they feel the movement of the fœtus; and that the movement is usually felt from the tenth to the twenty-fifth week, ordinarily about the sixteenth week. But it is perceived by the woman alone, and science has to depend wholly upon the veracity of the patient to determine the period of “quickening,” if by that is meant, the feeling of a motion which is taken by her as an indication that she bears within her a being capable of independent motion.

The court instructed the jury as follows:--

“If the jury believe and find that, in the month of December, 1877, one Maggie Gibbons was a woman about nineteen years of age, and was then pregnant with child; that, with an intent to destroy such child, the defendant did, at the city of St. Louis, and in said month, make an assault upon her; that with such an intent, and without a design to effect the death of said woman, he did feloniously and wilfully use and employ some instrument of hard substance in and upon the womb of her, in an effort to destroy the child therein, and that, by so doing, he did inflict upon her a mortal wound, of which she, subsequently, and in the month of January then succeeding, actually died, you will find him guilty of manslaughter.

If, at the time he did this, the said child was already a quickened child, you will convict him of manslaughter of the second degree. But if, at that time, it had not quickened, then guilty of manslaughter in the first degree. And unless from the evidence you so believe and find, you will acquit him.

If, of the guilt of defendant you are convinced by the evidence beyond a reasonable doubt, by which is meant convinced to a moral certainty, your duty is to convict him, otherwise to acquit him.

If you convict him of manslaughter of the first degree, you will assess his punishment at imprisonment in the penitentiary for any term not less than five years; and if of manslaughter of the second degree, at like imprisonment for any term not less than three, nor more than five, years.”

Defendant asked the following instruction, which was refused:--

“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 any such woman, or shall have been advised by a physician to be necessary for that purpose, shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment.”

The state was not represented in this court.

Though it is true that the advance of science shows that the term “quickening” as indicating the beginning of life in the fœtus, has no foundation in physiology, yet the common-law writers held, that life began only when the woman became “quick with child.” Before this time, a woman sentenced to be hanged might have been executed at common law, though pregnant. “ Enceinture, ” says Sir Matthew Hale, “is no cause to stay execution, unless she is enceinte with a quick child, or, which is all of one intendment, if she be quick with child.” Hale's P. C. 2413.

The framers of our statutory provisions in regard to abortion, undoubtedly used the...