State v. Hawkins

• Decision Date: 04 March 1919
• Docket Number: No. 21019.,21019.
• Citation: 210 S.W. 4
• Parties: STATE v. HAWKINS.
• Court: Missouri Supreme Court

210 S.W. 4

STATE v. HAWKINS.

No. 21019.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

J. B. Hawkins was convicted of the "felony of abortion" under Rev. St. 1909, § 4458, and he appeals. Affirmed.

Defendant, convicted in Audrain county of a violation of section 4458, R. S. 1909, and sentenced to imprisonment in the county jail for 60 days and to pay a fine of $800, has appealed in the usual way.

Such of the facts as are necessary to make clear the contentions of error made upon this appeal run thus: One Oneida Tipton, residing in Pike county, had sexual intercourse with a man of the vicinage named Carey Steele. Becoming, as she believed, pregnant, since her menses failed to appear on time, she went by train from her home with Steele to Mexico, where defendant, who is a duly licensed physician, maintains an office for the practice of his profession. Arriving at Mexico, prosecutrix waited in the railroad depot till Steele went to see defendant to arrange for prosecutrix's visit to him. Returning shortly, Steele took prosecutrix to the office of defendant. Defendant placed her in an operating chair, dilated her private parts with a speculum, and then inserted therein an instrument of some sort and of the size and shape of a lead pencil, which, when used, created a bearing-down sensation, and was followed by a flow of blood. The parts were then packed with what both prosecutrix and defendant call "wool." For this service Steele paid defendant $25.

Following this treatment prosecutrix became ill, and lay down on a bed in defendant's office till train time. On her way back to her home she grew worse, and was forced to lie down on the car seat. Prosecutrix thereafter continued more or less ill, and on the morning of the second day following the operation detailed she passed a fetus, she says. After this she became so ill and began suffering with such severe pain and cramping in the lower anterior abdominal region that she called a local physician, one Dr. Bartlett. When the latter appeared, she only disclosed to him the fact of her miscarriage on his direct questioning as to the fact after he had examined her; whereupon he asked to be allowed to examine the fetus. Being shown this, he remarked, "That's it all right." As to what was said by Dr. Bartlett, prosecutrix is corroborated by the testimony of her mother. Dr. Bartlett administered remedies, and shortly after prosecutrix fully recovered.

The defendant corroborated the prosecutrix as to her visit to him, her statement to him of her pregnancy, his examination of her person to ascertain this fact, and his treatment of her; but he denied the use of any hard, pencil-shaped instrument on her person. He further testified that she was not pregnant, but that she was suffering when he treated her merely from delayed menstruation and a relaxed condition of the muscles of the womb and of the ligaments which support it. He admits the insertion into the parts of what he calls "wool," but he says this was to support the womb, and, inferentially, not to stanch a flow of blood.

Dr. Bartlett, testifying for defendant, denied that he found any evidence of a miscarriage, or of prosecutrix's former pregnancy. He said that prosecutrix was merely suffering from delayed menstruation. This witness denied stating that when he examined the alleged fetus he admitted its identity as such, and said that he was informed by prosecutrix's mother that the former had had a miscarriage before he inquired as to the history of her illness.

The testimony shows that, if prosecutrix was in fact pregnant, such condition had subsisted only for some five or six weeks; there had been no quickening of the fetus. The reputation of prosecutrix for chastity and morality was shown to be bad. It was also shown that she had made some efforts looking toward a suit against Steele for damages, but abandoned these on ascertaining that his financial condition was such as to preclude the collection of any judgment she might obtain. Other facts will be referred to in our opinion.

Clarence A. Barnes, of Mexico, Mo., for appellant.

Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. It is contended by defendant that the information filed herein is insufficient. The criticism is necessarily directed toward the second count, since this is the count upon which defendant was convicted. Omitting merely formal parts, which are conventional and in no wise assailed, this information reads thus:

"And the said R. D. Rodgers, prosecuting attorney within and for the county of Audrain, in the state of Missouri, upon his oath further informs the court that on the 15th day of February, A. D. 1917, at said county of Audrain, state aforesaid, the said J. B. Hawkins did then and there, in and upon the body of said Oneida Tipton, a pregnant woman, then and there being, willfully, unlawfully, and feloniously make an assault, and did then and there willfully, unlawfully, and feloniously use and employ in and upon the body, womb, and private parts of the said Oneida Tipton a certain instrument and instruments, the exact nature and description of which said instrument and instruments is to this informant and prosecuting attorney unknown, and did then and there willfully, unlawfully, and feloniously insert, thrust, and force the said instrument and instruments into the body, womb, and private parts of the said Oneida Tipton, with the willful, unlawful, and felonious intent then and there and thereby to procure, promote, and produce a miscarriage and abortion upon, by, and to the said Oneida Tipton, the same not being then and there necessary to preserve the life of the said Oneida Tipton, and not being necessary to preserve the life of an unborn child then in the womb of the said Oneida Tipton, and not being advised by a duly licensed physician to be necessary for the purpose of preserving the life of the said Oneida Tipton, and not being 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 Oneida Tipton, the use of said instrument and instruments in the manner aforesaid by the said J. B. Hawkins in and upon the body, womb, and private parts of her, the said Oneida Tipton, not then and there or thereafter causing or producing the death of said Oneida Tipton, or the death of a quick child whereof she, the said Oneida Tipton, was pregnant—against the peace and dignity of the state."

One of the specific attacks upon the information is that the word "did" is omitted, and thus the information fails and omits to charge that defendant did make an assault upon the prosecutrix. We are of the opinion that both the fact and the law are against this contention. A mere cursory examination of the information discloses that it charges "that * * * the said J. B. Hawkins did then and there, in and upon the body of said Oneida Tipton, * * * willfully, unlawfully, and feloniously make an assault." Even if in fact the record bore out learned counsel's contention (as it will be noted it does not), we would upon authority have refused to hold the information bad, since such an omission is so patent a clerical misprision as that it will be at once seen, understood, and supplied by the most casual reader. State v. Massey, 274 Mo. 578, 204 S. W. 541.

The provisions of section 4458, under which the prosecution of defendant was had, apply not alone to physicians, but to all persons who `may commit the offenses therein denounced. The only reference made in the above sectio...