State v. Farnam
| Decision Date | 12 December 1916 |
| Citation | 82 Or. 211,161 P. 417 |
| Parties | STATE v. FARNAM. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Douglas County; G. F. Skipworth, Judge.
Roy A Farnam was convicted of manslaughter, and appeals. Affirmed.
The defendant was indicted for murder in the second degree, the charging part of the indictment being as follows:
"He the said Roy A. Farnam, on the 8th day of December, A. D 1914, in the said county of Douglas, state of Oregon, then and there being, did then and there wrongfully, unlawfully feloniously, purposely, and maliciously kill Edna Morgan in some manner and by some means unknown to the grand jury; and so he, the aforesaid Roy A. Farnam, did then and there in said county and state commit the crime of murder in the second degree by feloniously, purposely, and maliciously killing the aforesaid Edna Morgan, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
The jury returned a verdict, finding defendant guilty of manslaughter. The court, among others, gave the following instructions:
The defendant by his counsel excepted generally to the instructions in regard to manslaughter. From the judgment of the court upon the verdict the defendant appeals here. The points relied upon in the appeal appear in this opinion and in the opinions of Mr. Justice HARRIS, concurring, and of Mr. Justice BURNETT, dissenting.
W. W. Cardwell, of Roseburg, for appellant. Geo. M. Brown, Atty. Gen., and George Neuner, Jr., Dist. Atty., of Roseburg (Dexter Rice, of Roseburg, on the brief), for the State.
McBRIDE, J. (after stating the facts as above.)
For the reasons stated in the opinion of Mr. Justice HARRIS we are satisfied that the defendant was guilty of an unlawful homicide, and that he either shot deceased, which would be deliberate murder, or killed her in the attempt to commit an unlawful abortion upon her, which, under our statute, would be manslaughter. The general rule in this state is that an indictment for murder in the first degree necessarily involves all other grades of homicide which the evidence tends to establish. State v. Ellsworth, 30 Or. 145, 47 P. 199; State v. Magers, 35 Or. 520, 57 P. 197; State v. Crockett, 39 Or. 76, 65 P. 447; State v. Megorden, 49 Or. 259, 88 P. 306, 14 Ann. Cas. 130. These decisions would seem to foreclose the contention of defendant's counsel here so far as this branch of the case is concerned, and the case of People v. Olmstead, 30 Mich. 431, which suggests a contrary view, we believe to be based upon an erroneous distinction between that class of homicides known as voluntary homicides, in which violence, assault, and trespass are involved, and involuntary homicides caused by the doing of an unlawful act, but with no intent that it should result in death. As observed in People v. Olmstead, the defect is not one of pleading, but of evidence. If it appears, therefore, from the evidence that the defendant, in attempting to commit an abortion upon the deceased, assaulted her, this brings the case within the ordinary rules of manslaughter. Procuring an unlawful abortion upon any woman always involves an assault in law, even when it is done with her consent and connivance, because no one can consent to an unlawful act. While as between the parties an unlawful act may sometimes be condoned, it is not within the power of any person to waive the violation of the laws of the country. Instances of this are found in cases of mutual agreements to fight, wherein it is held that both parties to such a conflict are guilty of assault and battery, and that each may recover damages from the other for injuries inflicted. 5 C.J. P. 630, and cases there cited. If procuring an unlawful abortion, therefore, is an assault, the offense comes within those involuntary killings by misdirected violence which constitute manslaughter. At common law the producing of an unlawful abortion resulting in the death of the mother was murder by violence. Our statute by making the offense manslaughter has not created a new crime, but has merely reduced the grade of an old offense by changing the punishment from death to imprisonment in the penitentiary. Thus, in Chitty's Criminal Law, vol. 3, p. 800, we find the form of an indictment for procuring an abortion, or rather a series of abortions, the fourth count of which we quote, omitting only formal and archaic allegations:
"And the jurors, etc., do further present that the said E. F. afterwards, etc., in and upon A. E. * * * [she] then and there being big and pregnant with a certain other child, did make another violent assault, and her the said A. E. and then and there did violently beat, bruise, wound, and ill treat, so that her life was thereby greatly despaired of, and then and there violently, wickedly, and inhumanly pinched and bruised the belly and private parts of the said A. E., and a certain instrument called a rule, which he, the said E. F., in his right hand then and there had and held, up and into the womb and body of the said Anne, then and there violently, wickedly, and inhumanly, did force and thrust with a wicked intent to cause and procure the said A. E. to miscarry and to bring forth the said child, of which she was so big and pregnant, as last aforesaid, dead," etc.
Another count in the same indictment for another abortion attempted upon the same woman charged the defendant with an assault by administering drugs with intent to produce an abortion, and feloniously and of malice aforethought to murder said child. So it is said in Hale's Pleas of the Crown, p. 429:
"If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder, for it was not given to cure her of a disease, but unlawfully to destroy her child within her, and, therefore, he that gives a potion to this end must take the hazard, and if it kills the mother, it is murder, and so ruled before me at the assizes at Bury in the year 1670." See, also, Margaret Tinckler's Case, 1 East's P. C. 354.
From these precedents I conclude that at common law the act of producing an abortion was always an assault, for the double reason that a woman was not deemed able to assent to an unlawful act against herself, and for the further reason that she was incapable of consenting to the murder of an unborn infant; and, as already shown, our statute, while it has reduced the grade of the homicide from murder to manslaughter, has not taken away any other element of the offense. This being true, the death of the deceased, occurring by reason of a double assault made both upon her and upon her unborn child, comes clearly within the category of those degrees of felonious homicide by violence which begins with murder in the first degree. The practice of allowing convictions for manslaughter upon indictments for murder in the first degree is no mere creature of our statute, but is as old as the common law. Thus in 1 East's P. C. 340, printed in 1716, we find the following:
"In most cases where justice requires that a man should be put upon his trial for killing another, it is usual (and proper, if there be any doubt) to charge him in the indictment for murder, because in many instances it is a complicated question; and no injury can thereby happen to the individual at all comparable to the evil example of a lax administration of justice in this respect; for the verdict and judgment will still be adapted to the nature of the offense, such as it appears upon the evidence."
In the appendix to Blackstone's Com., vol. 4, is found a form of judgment upon a verdict of manslaughter upon an indictment charging the defendant with willful murder. From all of these authorities we deduce the principle that procuring an unlawful abortion by any means is always in the eye of the law an assault, both upon the woman operated upon and upon the unborn child, and that the one who, in producing such abortion, kills the mother stands in no different relation to the law from a person who, in an attempt to shoot A., shoots wild and kills B., except in so far as section 1900, L. O. L., has modified the punishment. It seems to be the general rule that an indictment in the ordinary form for murder in the first degree is sufficient to sustain a conviction for a homicide committed in the attempt to perpetrate a felony. Titus v. State, 49 N. J Law, 36, 7 A. 621; Commonwealth v. Flanagan, 7 Watts & S. (Pa.) 415; People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4 L. R. A. 757; State v....
To continue reading
Request your trial
-
State v. Buck
... ... 1 C.J.S., Abortion, § 1, page 312. 'Abortion', as such, was never defined as a crime in this state. We have expressly so held. State v. Farnam, 82 Or. 211, 278, 161 P. 417, Ann.Cas.1918A, 318; State v. Dunn, 53 Or. 304, 313, 99 P. 278, 100 P. 258; Belt v. Spaulding and Rockwell, 17 Or. 130, 136, 20 P. 827 ... What is said with reference to duly licensed physicians and surgeons applies also to osteopathic physicians and ... ...
-
State v. Vestal
... ... It is noted that the views expressed by Justice Traynor are those applied by Chief Justice Pearson in State v. Dula, 61 N.C. 211 (1867), and State v. Dula, 61 N.C. 437 (1868), discussed below ... Although not cited in the majority opinion, State v. Farnam, 82 Or. 211, 161 P. 417 (1916), involves questions similar to those heretofore considered. Upon appeal, the plaintiff's conviction of manslaughter was affirmed. The majority held competent the declarations of the deceased that she could not go home with Mabel that night 'because she thought Roy ... ...
-
State v. Deal
... ... 676] purpose for which it is competent. State v. Moore, 180 Or. 502, 507, 176 P.2d 631, 177 P.2d 413; State v. Farnam, 82 Or. 211, 253, 161 P. 417, Ann.Cas.1918A 318; State v. Finnigan, 81 Or. 538, 544, 160 P. 370; 53 Am.Jur., Trial, 515 § 670. And, as we cannot say that the error did not influence the verdict, the judgment must be reversed. State v. Cerruti, supra, 188 Or. 103, 116, 214 P.2d 346, 16 A.L.R.2d ... ...
-
Pugsley v. Smyth
... ... determined whether there is a causal connection between the ... conduct of Smyth and the mental state and conduct of Mrs ... Pugsley, and then, if there is, whether the conduct of the ... one is the controlling cause and that of the other ... or trembling hands or a whitened face may be the natural and ... uncontrollable manifestations of fear. State v ... Farnam, 82 Or. 211, 249, 161 P. 417, Ann. Cas. 1918A, ... 318. When, therefore, the state of a person's mind is the ... subject of inquiry, it ... ...