State v. McGaughey

• Decision Date: 10 April 1922
• Docket Number: 4918
• Citation: 187 N.W. 717,45 S.D. 379
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. J. W. McGAUGHEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

45 S.D. 379

187 N.W. 717

STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. J. W. McGAUGHEY,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, SD

Hon. John T. Medin, Judge

#4918--Reversed

C. L. Jones, Frank Vincent, and Kirby, Kirby & Kirby

Attorneys for Appellant.

Byron S. Payne, Attorney General

A. S. Bogue, State's Attorney

Attorneys for Respondent.

Opinion filed April 10, 1922; Rehearing denied May 16, 1922

SMITH, J.

Appellant was convicted in the circuit court of Turner county upon an information charging that the accused

"willfully, unlawfully, and feloniously used and employed an instrument in and upon the body of Lottie Henning, a woman then and there pregnant with a quick child, the true name of said instrument and the manner of the use thereof being to this informant unknown, with intent thereby to destroy such child with which said child said Lottie Henning was then and there pregnant, and the use and employment of said instrument was not then and there necessary to preserve the life of said mother, Lottie Henning, and by the use and employment of said instrument the death of said mother was thereby produced."

This appeal is from the judgment and an order overruling a motion for a new trial. Appellant pleaded not guilty, and also a plea of former acquittal. To sustain the latter defense, accused offered in evidence records of the circuit court of Turner county disclosing, in substance, that an information had been theretofore filed against him charging him with advising and procuring Lottie Henning, then pregnant with a quick child, to use a catheter in a manner and with intent to destroy the life of the child, and that the death of the child was thereby produced; that the cause proceeded to trial, and the jury was duly impaneled and sworn, and evidence taken which was, in substance, the same as that received at the present trial, except that alleged dying declarations of Lottie Henning were excluded; that at the close of the trial. upon defendant's motion, the state's evidence was stricken out, and the action dismissed upon motion of the state's attorney. The records so offered were objected to as immaterial, and excluded by the trial court, and error is assigned.

Section 4022, R. C. 1919:

"Every person who administers to any woman pregnant with a quick child, or who prescribes for such woman, or who advises or procures any such woman to take any medicine, drug or substance whatever, or who uses or employs any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, is guilty, in case the death of the child or of the mother is thereby produced, of manslaughter in the first degree."

It is quite apparent that both informations were framed under this section of the Code. It is clear that the proceedings at the former trial would be a bar against a prosecution for the identical crime for which the accused was then on trial.

It is appellant's contention that the crime charged in the first information is identical with that proved at the present trial, and that an acquittal of such act is a bar to a second prosecution for the same act. It is true that the facts alleged in the former information are identical with those relied upon under the present information, with a single exception, namely, that in the former information the act was alleged to have been done with intent to produce the death of a quick child, and resulted in its death, while in the present information, the charge is that the act was done with intent to destroy a quick child, which act resulted in the death of Lottie Henning, the pregnant woman. It is clear that under this statute two distinct crimes may result from' the doing of the same act, namely, the unlawful death of an unborn quick child, or the death of the mother.

This precise question was put at rest by this court in accordance with the quite unanimous rulings of other courts in the case of State v. Caddy, 91 Am. St. Rep. 666, wherein this court, quoting with approval the language of...