State v. Hanson
| Citation | 220 N.W. 518,53 S.D. 205 |
| Decision Date | 14 July 1928 |
| Docket Number | 6578. [*] |
| Parties | STATE v. HANSON. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Yankton County; R. B. Tripp, Judge.
Mary Ann Hanson was convicted of using instruments on a pregnant woman with intent to procure miscarriage, and she appeals. Affirmed.
H. A Robinson and Harry Kunkle, both of Yankton, for appellant.
Lee H Cope and Orvis & French, all of Yankton, and Hon. Buell F. Jones, Atty. Gen., for the State.
Defendant was convicted of using instruments upon a pregnant woman with intent to procure miscarriage, and appeals from the judgment and an order denying a new trial. The sufficiency of the evidence to justify the verdict is not questioned.
The errors assigned are:
First. Refusal to quash the information on the ground of variance from the preliminary complaint. The complaint charged defendant with unlawfully using certain instruments upon the person of a girl with intent to procure her miscarriage. The criticism is that it fails to allege that the girl was pregnant and that what was done was not necessary to save her life. The complaint does not need to charge the particulars of the offense with the precision used in an indictment or information. It is sufficient if it fairly apprises accused of the nature of the offense charged. State v. Hart, 30 N.D. 368, 152 N.W. 672. The motion to quash was properly denied.
Second. It is claimed that the information is fatally defective because it does not name or describe the instruments used and "the method of performance." Such minutiae as this is neither required by statute nor necessary to enable accused to defend. The information charged that at a specified time and place defendant used in and upon the body of the girl named, she being then and there pregnant with child, certain instruments and other means unknown to informant, with intent then and there and thereby to cause and procure her miscarriage, which was not necessary to preserve her life. This was sufficient to enable a person of common understanding to know what was intended (Code 1919, § 4725), and the objections were properly overruled (State v. Bly, 99 Minn. 74, 108 N.W. 833; State v. Moothart, 109 Iowa, 130, 80 N.W. 301).
Third. Defendant contends that a challenge to the jury panel should have been sustained, because the list from which the jury was drawn did not contain 200 names, and because the jurors drawn were not given 15 days' notice in writing of the time and place where they were to appear for duty. The statute requires that the jury list shall contain 200 names, and that such number shall at all times be kept full by completing the number after each term of court when a jury or juries have been drawn and summoned.
Defendant was tried twice, once on June 13, 1927, when the jury disagreed, and again on June 27th, at which time the conviction was had from which she now appeals. It is difficult to say whether these trials were had at two special terms of court, or at an adjourned session of the February term, as the record is vague and obscure in regard to this. In defendant's brief, however, it is said and reiterated that the trial was had at a general term, and we will assume that this was the fact.
There are two general terms of the circuit court each year in Yankton county, one in February and one in September. The list from which the jurors for the February term was drawn contained the full number of 200 names. From this list a panel of 19 names was drawn, after which the sitting of the court was adjourned until the time when defendant was first tried, only one of this panel of 19 being retained for further jury duty. For the session of court at which defendant was first tried, an additional panel of 36 was drawn from the same jury list, from which number a jury was selected for the trial, which resulted in a disagreement. Thereafter, by verbal order of the court, 18 additional names were drawn from the same jury list to supplement the 36, and defendant was again put on trial on June 27th, and the challenge to the panel was interposed on the ground that at one time 19 jurors had been drawn from the list, and at another 36, so that the list from which the 18 additional jurors were drawn contained only 145 names at the time they were drawn. We do not know of any provision of law which prevents the court from calling at different times during the same term as many jurors as may be necessary for the transaction of its business, and the fact that only 19 jurors were originally called for service did not prevent the court from thereafter calling 36 more, and still later calling an additional 18 during the same term.
We hold that from the 200 names in the jury list at the beginning of any term the court may direct to be called as many panels of jurors as may be necessary for the transaction of the business during that term, until the entire 200 names, if necessary, are exhausted, before he is required to order the sheriff to summon men having the qualification of jurors under the provision of section 5297 of the Code.
That the 18 additional jurors were only notified verbally of their selection on June 25th, instead of by written notice given 15 days before the day on which they were required to appear, is nothing of which the defendant can complain. The 15 days' notice is for the convenience of the juror, and if he appears and is ready for duty in response to a verbal notification, however, brief, the defendant is in no way injured by the form of the notice of length of time which the juror has had in which to get ready to come to court. The challenge to the jury panel was therefore properly denied.
Fourth. The girl upon whom the instruments are alleged to have been used solicited the commission of the act, and a girl companion accompanied her on her visits to the defendant's home and knew the purpose for which she went there. Both girls were witnesses for the prosecution, and defendant asked the court to charge the jury that, inasmuch as both these girls "by their solicitation of or consent to the acts charged to have been committed by the defendant, alleged to be unlawful, were severally implicated in these acts and their unlawful and criminal character, that fact may justly be considered by the jury as affecting their credibility as witnesses and the force and weight of their testimony." The refusal of the court to give this instruction is assigned as error. Defendant cites 1 R. C. L. 88, 1 C. J. 332, and Commonwealth v. Brown, 121 Mass. 69, as sustaining the contention that such an instruction is proper. But none of these authorities say that refusal to give such an instruction is error.
In Seifert v. State, 160 Ind. 464, 67 N.E. 100, 98 Am St. Rep. 340, it is held that such a requested instruction should have been given. No part of the instructions given appears in the report of that case. But in...
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