State v. Gow
| Decision Date | 20 June 1911 |
| Citation | 138 S.W. 648,235 Mo. 307 |
| Parties | THE STATE v. CLYDE W. GOW, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.
Affirmed.
R. H Norton, Dudley & Palmer, Avery, Young & Woolfolk for appellant.
(1) The court in the information on which defendant was tried charged the defendant at the county of Lincoln on the 20th day of February, 1908, with making an assault upon one Lizzie Gleason and did use and employ a certain instrument and did thrust and force said instrument and advise, cause and force the said instrument to be inserted, thrust and forced into the body, womb and private parts of the said Lizzie Gleason . . . . from the effects of which she died on the 25th day of February, 1908. The court at the trial, under this charge, permitted evidence to be given that the defendant advised and procured one Dr. W. A. Hemphill to perform an abortion on the deceased Lizzie and in this, we think the court erred. Sec. 22, Art. 2, Constitution of Missouri; Chitty, Cr. Law, 169; State v. Murphy, 141 Mo. 270; State v. Hayward, 83 Mo. 304; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Kruger, 134 Mo. 262; State v. Stowe, 132 Mo. 199; State v. Nunley, 185 Mo. 102; State v. Thierauf, 167 Mo. 429; State v. Burke, 151 Mo. 136; State v. Metsenberger, 171 Mo. 601; State v. Cameron, 117 Mo. 371. (2) The defendant asked and the court refused to give an instruction to the effect that Dr. W. A. Hemphill was a licensed physician at the time of the alleged operation and also to the effect that even though an operation was performed on Lizzie by Dr. Hemphill, but not on the advice of Clyde Gow, then defendant was entitled to acquittal. State ex rel. v. Goodier, 195 Mo. 551; State v. Mathews, 20 Mo. 55; State v. Reed, 154 Mo. 122; State v. Davis, 141 Mo. 522. (3) The court erred in admitting any evidence as to the alleged dying declaration of deceased Lizzie Gleason. State v. Horn, 204 Mo. 546; State v. Parker, 172 Mo. 194; State v. Draper, 65 Mo. 340; State v. Vansant, 80 Mo. 76; State v. Parker, 96 Mo. 392; State v. Bowles, 146 Mo. 16; State v. Kelleher, 201 Mo. 636; State v. Zorn, 202 Mo. 31; State v. Simon, 50 Mo. 372; State v. Johnson, 118 Mo. 504; State v. Kelleher, 201 Mo. 638; State v. Draper, 65 Mo. 335; State v. Johnson, 118 Mo. 491. (4) There was no conspiracy proven by the evidence in this case. State v. Kennedy, 177 Mo. 102; Weinstein v. Reed, 25 Mo.App. 41; State v. Reed, 85 Mo. 198; State v. Duncan, 64 Mo. 266; Spies v. People, 3 Am. St. Rep. 449; Metcalf v. Conner, 12 Am. Dec. 341. (5) The court should have sustained the demurrers offered both at the close of the State's evidence and at the close of all the testimony given in the case. Authorities above cited. (6) The State did not prove the venue or that the alleged offense was committed in Lincoln county, Missouri. (7) Nor did the State prove that the alleged operation was unnecessary to save life. State v. Meek, 70 Mo. 358. (8) The offense, if any, committed by the defendant was that an abortion being committed on the deceased, and the offense so far as he was concerned, was completed upon the commission of the abortion and her death occurring several days after could be no part of the offense, and therefore any statement of a co-conspirator after the completion of the offense, that of abortion, could not be given in evidence against the defendant. Cone v. Horner, 153 Mass. 343; Reuting v. Korn, 110 Pa. 1; State v. Bean, 85 Mo.App. 473. (3) The particular statute must be proceeded under to the exclusion of the general statute. State v. Green, 87 Mo. 587; State ex rel. v. Foster, 187 Mo. 610; State v. De Bar, 58 Mo. 395.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
Appellant concedes, in effect, that in so far as the information sought to charge that appellant did, himself, "insert, thrust and force said instrument," by which the abortion was procured, it is not subject to attack. It is insisted, however, that in so far as it sought to charge that appellant advised the procurement of the abortion, the information is invalid. The information follows closely the language of the statute. Sec. 4458, R. S. 1909. The contentions made by appellant's counsel resolve themselves into these: First -- The information does not charge that appellant was not a duly licensed physician. Second -- The information does not name the person whom appellant "advised." 1. Under section 4458, R. S. 1899, under which section the information in this case was framed, it is not necessary to charge that the defendant is not a duly licensed physician. It is to be observed that the information does charge that the procurement of the abortion was not "necessary to preserve the life of the said Lizzie Gleason and not . . . . necessary to preserve the life of an unborn child then in the womb of the said Lizzie Gleason." It further charges that the abortion had not "been advised by a duly licensed physician to be necessary for the purpose of preserving the life of an unborn child then in the womb of the said Lizzie Gleason." The portion of the statute upon which the charges mentioned and the contention of appellant are based, is a general exception applicable to all cases where the act was necessary to save the life of the woman or the child. From the provisions of the statute, still rigorous despite the general exception first made (Hatchard v. State, 79 Wis. 362), a person who is not a licensed physician is further absolved if he acted under the advice of a physician. In fact, there are but two possible defenses under this clause, i. e., that the act was necessary (this being a defense for all) and that the act was advised by a physician (this defense being restricted to those who are not physicians). The information negatives both the general defense or exception and also negatives the additional defense open to those who are not licensed physicians. The phrase "or if such person is not a duly licensed physician," is not an additional exception in itself, but merely a parenthetical phrase, descriptive of those who might avail themselves of the second exception. A physician could defend only under the first exception. Any other could defend under either exception. State v. Fitzporter, 93 Mo. 394. Both exceptions are negatived by the information on which appellant was tried. The case of State v. Meek, 70 Mo. 357, is cited on this point. The information in the case at bar meets, exactly, the requirements of the rule laid down in that case. In that case there was a total failure to negative the fact that the defendant acted on the advice of a physician. Here that fact is negatived. The information negativing any necessity for the operation and negativing the performance of the operation under the advice of a physician, negatives both the exceptions in the clause, thus negativing all the defenses open to appellant whether he be physician or layman. There would be no additional virtue imparted to the information by including a clause informing him that he was not a licensed physician. Whether licensed physician or not, the information so negatives the exceptions as to show (waiving other objections for the moment) that if the facts charged be true appellant is necessarily guilty. This is the sole purpose of negativing exceptions in any case -- that the information may state a prima-facie case. 1 Bishop's New Crim. Proc., sec. 636. Where the statute makes the advice of physicians a defense, the fact that the offender is a physician does not aid him if the operation was, in fact, unnecessary. Hatchard v. State, 79 Wis. 362. 2. So far as we have been able to discover, no case requires the information to name the person advised where the offense alleged is the advising of the procurement of an abortion. But the answer to the second criticism made of the information in appellant's brief is that appellant is charged as a principal, as was proper. Sec. 4898, R. S. 1903; Sec. 5105, R. S. 1909; State v. Steptoe, 65 Mo. 642; State v. Orrick, 106 Mo. 119; State v. Sykes, 191 Mo. 79; Bishop's New Cr. Law, secs. 604, 664, 670, 673, 653. 3. Under these authorities and statutory provisions, the information easily meets the criticisms lodged against it. Certainly, it was not objectionable to charge conjunctively the several acts which the statute, disjunctively, denounces as crimes. State v. Currier and Moore, 225 Mo. 649. Further, "a portion of an indictment may be stricken out, or be treated as surplusage, if enough be left to make a valid and substantial charge of the crime intended to be charged." State v. Currier and Moore, 225 Mo. 658.
At the January term, 1909, of the circuit court of Audrain county, appellant was convicted of manslaughter in the second degree, sentenced to imprisonment in the penitentiary for a term of four years, and appealed to this court.
The original information, which contained three counts, was filed in the circuit court of Lincoln county on March 20, 1908. Two amended informations were filed, each containing three counts. After the defendant had entered a plea of not guilty to the second amended information, he applied for and was granted a change of venue to the circuit court of Audrain county. The case was tried in the Audrain Circuit Court at the January term, 1909. The State dismissed as to the first and third counts, the defendant was again arraigned, entered a plea of not guilty to the second count of the second amended information, was placed on trial, found guilty, and his punishment assessed as stated.
The count of the information upon which the defendant...
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