State v. Gibbons

• Decision Date: 07 April 1909
• Citation: 142 Iowa 96,120 N.W. 474
• Parties: STATE v. GIBBONS.
• Court: Iowa Supreme Court

142 Iowa 96

120 N.W. 474

STATE

v.GIBBONS.

Supreme Court of Iowa.

April 7, 1909.

Appeal from District Court, Fayette County; A. N. Hobson, Judge.

Defendant was charged in the indictment with causing the death of a pregnant woman by administering to her drugs, and using upon her an instrument for the purpose of producing a miscarriage; said miscarriage not being necessary to save her life. The court ruled that the indictment charged only the administration of a drug and the use of an instrument with intent to produce the miscarriage of a pregnant woman, and not the crime of murder in the second degree. The defendant was thereupon tried for the unlawful attempt to produce a miscarriage and was acquitted. The state appeals. Reversed.H. W. Byers, Atty. Gen., Chas. W. Lyon, Asst. Atty. Gen., and James Cooney, County Atty., for the State.

Loren Risk, E. J. O'Connor, and Clements & Esty, for appellee.

McCLAIN, J.

The ruling of the trial court that the indictment did not charge murder in the second degree was made when the prosecution offered to show the dying declaration of the woman whose death was alleged to have resulted from the attempt to procure an abortion, holding that, as the indictment was not sufficient to sustain a conviction for murder, dying declarations were not admissible. This ruling was prejudicial to the prosecution, for the result was not only to relieve the defendant from punishment for the higher crime, but also to make it more difficult by reason of the exclusion of dying declarations to convict for any crime. The sufficiency of the indictment to charge murder in the second degree is the only question submitted and the only one which we have occasion to consider.

The charging part of the indictment states: That Martha Gibbons at and within said county on the 16th day of January, A. D. 1908, did willfully and feloniously administer to one Mrs. John Weaver, she being then and there a pregnant woman, some medicine, drugs, or substance, the exact name and character of which is to the grand jury unknown, and did then and there use a certain instrument, the name and particular description of which is to the grand jurors unknown, with the intent then and there to unlawfully produce miscarriage on the person of her, the said Mrs. John Weaver; said miscarriage not being necessary to save the life of the said Mrs. John Weaver. That the said defendant in the manner aforesaid in Fayette county, Iowa, on the 11th day of January, 1908, by and with the use of said drug and substance, and the use of said instrument aforesaid, did produce a miscarriage on the body and person of said Mrs. John Weaver, which miscarriage was not necessary to save the life of the said Mrs. John Weaver. That defendant by said miscarriage did on the 25th day of January, 1908, in Fayette county, state of Iowa, cause the death of said Mrs. John Weaver, and the said defendant did then and there in the manner aforesaid, by causing said miscarriage, willfully, feloniously, maliciously, deliberately, and with malice aforethought kill and murder the said Mrs. John Weaver, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Iowa. The objection to the...