State v. Gaul

• Decision Date: 24 November 1915
• Docket Number: 13019.
• Citation: 88 Wash. 295,152 P. 1029
• Court: Washington Supreme Court
• Parties: STATE v. GAUL.

152 P. 1029

88 Wash. 295

STATE v. GAUL.

No. 13019.

Supreme Court of Washington

November 24, 1915

Department 2. Appeal from Superior Court, Chehalis County; A. E. Riel Judge.

A. C A. Gaul was convicted of abortion, and he appeals. Affirmed.

Hayden Langhorne & Metzger, of Tacoma, and Thacker & Hancock, of Chehalis, for appellant.

C. D. Cunningham, of Centralia, and H. E. Donohoe, of Chehalis, for the State.

HOLCOMB, J.

Appellant was charged with and convicted in the superior court of the crime of abortion.

1. The first claim of error by appellant is that the information is insufficient and the demurrer thereto was erroneously overruled. The charge of the information, omitting formal parts, is as follows:

'* * * Then and there being, did then and there willfully, unlawfully, and feloniously and with intent then and there had to produce a miscarriage on the person of A L., a woman, administer to the said A. L. drugs and medicines unknown to the prosecuting attorney, for the purpose of producing a miscarriage, and he, the said A. C. A. Gaul, then and there being, did then and there willfully, unlawfully, and feloniously and with intent to produce a miscarriage on the person of A. L., a woman as aforesaid, use upon the person of said A. L., for the purpose of producing a miscarriage, an instrument, the character of which is unknown to the prosecuting attorney, and said intended miscarriage was not necessary to preserve the life of the said A. L. or that of the child whereof she was then and there pregnant.'

The statute, upon which this information is based, is as follows:

'Any person who, with intent to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall----

'1. Prescribe, supply, or administer to a woman, whether pregnant or not, or advise or cause her to take any medicine, drug or substance; or,

'2. Use, or cause to be used, any instrument or other means;

'Shall be guilty of abortion, and punished by imprisonment in the state penitentiary for not more than five years, or in the county jail for not more than one year.'

The information follows the statute. In so doing, however, appellant asserts (1) that it either charges two separate and distinct offenses, one committed by means of drugs and medicines unknown, the other by the use of an instrument unknown, or that it fails to allege any offense whatever by reason of its duplicity; and (2) that it fails to allege any offense because it does not state the means employed, and does not allege how, if an instrument was relied upon, it was used, or where upon the person of the woman, it was used--citing Smartt v. State, 112 Tenn. 539, 80 S.W. 586; State v. Brown, 3 Boyce (Del.) 499, 85 A. 797; 1 Corpus Juris, p. 319; 11 Ann. Cas. 222, note; Cochran v. People, 175 Ill. 28, 51 N.E. 845; State v. Dodd, 84 Wash. 436, 147 P. 9.

The Smartt and the Cochran Cases sustain the contention of appellant, but the rule in those cases has been rejected by a larger number of courts dealing with the same question. State v. Longstreth, 19 N.D. 268, 121 N.W. 1114, Ann. Cas. 1912D, 1317; State v. Bly, 99 Minn. 74, 108 N.W. 833; People v. Wah Hing, 15 Cal.App. 195, 114 P. 416; Com. v. Sinclair, 195 Mass. 100, 80 N.E. 799, 11 Ann. Cas. 217; Bishop's Crim. Proc. § 453; 2 Wharton, Crim. Law (11th Ed.) p. 1009. Thus Wharton states the rule:

'Drug or substance used to procure abortion or miscarriage need not be set out by name or described scribed in indictment. Instrument being charged as used with criminal intent to procure abortion or miscarriage, the indictment need not allege the name or kind or character of the instrument or the manner in which used, or set out that the same is unknown to the jurors.'

Thus Bishop:

'* * * If an offense may be committed by different means, and the pleader doubts which was employed in the particular instance, he may in one count charges its commission by all, and proof of any one will sustain the allegation. The limit to this doctrine is, that the means must not be repugnant'--quoted from State v. O'Neil, 51 Kan. 651, 33 P. 287, 24 L. R. A. 555.

'It is a well-settled rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute.' 22 Cyc. 380; State v. Pettit, 74 Wash. 510, 133 P. 1014.

Certainly, there are well-recognized exceptions to the rule that it is generally sufficient to charge the commission of an offense in the language of the statute defining the offense, under the just rule that there must be sufficient facts alleged not only that the accused may know for what precise offense he is prosecuted and prepare his defense thereto, but also that in case of a subsequent prosecution it may be made to appear whether he is prosecuted twice concerning the same subject-matter. But as to the information now before us, under the statute defining abortion, to quote from State v. Bly, supra:

'That it does not sufficiently notify the offender of the nature of the charge to enable him to prepare for trial has no reasonable foundation. That his defense could possibly turn or depend on the exact instrument or method of operation is not within the realm of possibility. Every essential item is set out for his enlightenment. * * *'

The Supreme Court of California in the Wah Hing Case, supra, held upon a similar indictment to the same effect, expressly disapproving the Cochran Case decided by the Illinois Supreme Court; and further said:

'We cannot see that, after a conviction under this indictment, the defendant would be in danger, through any indefiniteness in its averments, of a second conviction for the same offense, nor can we see that he was not sufficiently informed of the offense charged to enable him to prepare his defense.'

The information was sufficient, and the demurrer was properly overruled.

At the trial the court allowed the state, over the objection of appellant, to introduce testimony of sexual intercourse had by appellant with complaining witness for a period of more than a year preceding the date on which the abortion was alleged to have been performed. The state claimed the evidence was admissible to show that the complaining witness was pregnant by the appellant, and thus show a motive on the part of appellant to commit the crime. The appellant then interposed the defense that he was impotent, and that therefore it was impossible for him to impregnate the complaining witness or any other woman. Physicians were produced who testified to having made proper examination, and that appellant was sterile and incapable of procreation. This evidence the state rebutted by the testimony of physicians that sterility might be found on one or several examinations, and still the subject be potent at other times and capable of procreation.

At the close of all the testimony appellant requested the court to give the following instruction, which was refused, and none other upon the same subject given:

'It is claimed by the state that the defendant had sexual relations with said A. L. for a period of time previous to December 14, 1914, and that because of said sexual relations with defendant, said A. L. has become pregnant with child. The purpose of the introduction of this testimony by the state is to show that the intention of the defendant was to relieve the pregnant condition of said A. L. from her condition of pregnancy caused by said defendant. It is claimed by the defendant that the said A. L. did not become pregnant because of any sexual relations with him, and that he was impotent. In other words, that the said defendant was incapable of causing the said A. L. to become pregnant, and if you find this to be true from all the evidence, then I instruct you that it would be your duty to find for the defendant on the question as affecting his criminal intention, and if you find that there is no other evidence in the cause showing a criminal intention on his part to procure a miscarriage of A. L., then it will be your duty to acquit the defendant.'

It is not very stoutly maintained by appellant that this proposed instruction is not somewhat inartificially drawn, and somewhat too strong in its direction to the jury to find for the appellant on the sole question of intent as limited wholly to evidence of appellant's power to impregnate the complaining witness or lack of such power. It is true that the intent on the part of accused, at the time and place alleged, to commit an abortion upon the complaining witness, was an essential element of the crime, and necessary to be proven beyond a reasonable doubt. The court...