State v. Meek

• Citation: 70 Mo. 355
• Parties: THE STATE v. MEEK, Appellant.
• Decision Date: 31 October 1879
• Court: Missouri Supreme Court

70 Mo. 355

THE STATE

v.MEEK, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Shanklin, Low & McDougal and John E. Wait for appellant.

J. L. Smith, Attorney-General, for the State.

HOUGH, J.

The defendant was indicted for procuring an abortion. The section of the statute under which the indictment was drawn provides that every person “who shall willfully administer to any pregnant woman any medicine, drug or substance whatsoever, or shall use or employ any means whatsoever with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor.” The material portions of the indictment are as follows: “The grand jurors, &c., upon their oaths, present that Orlando Meek, late of the county aforesaid, on the _____ day of December, 1874, at, &c., did willfully and unlawfully administer to one Arabella Tronsue, a woman then and there being pregnant with child, a large quantity of medicine, with intent thereby to procure abortion and miscarriage of the said Arabella Tronsue, the administering of said medicine to said Arabella Tronsue not being then necessary to preserve the life of said Arabella Tronsue; and the grand jurors further present that said Orlando Meek fled from justice in this cause in the month of May, 1875, and against the peace and dignity of the State. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that Orlando Meek, late, &c., on, &c., at, &c., did willfully and unlawfully administer to one Arabella Tronsue, a woman then and there being pregnant with child, a large quantity of medicine and drugs, with intent thereby to procure abortion and miscarriage of the said Arabella Tronsue, the administering of said medicine and drugs to said Arabella Tronsue not being then necessary to preserve the life of said Arabella Tronsue, and against the peace and dignity of the State.”

The indictment, it will be perceived, fails to negative one of the exceptions contained in the statute defining the offense. The defendant moved to quash the indictment because it did not negative both of said exceptions. This motion was overruled, and the defendant was tried and convicted. A motion to arrest the judgment for the reasons stated in the motion to quash, was also overruled, and the case comes here by appeal.

The indictment before us is in form like that in the case of the State v. Van Houten, 37 Mo. 557. The circuit court, in that case, quashed the indictment on a motion assigning as grounds therefor, that it did not state facts sufficient to constitute any offense, and that it did not specify or describe the kind, quantity and quality of medicine alleged to have been administered. This court held that the circuit court erred in quashing the indictment “for the reasons set forth in the motion;” that it was unnecessary to allege the kind, quantity or quality of the medicine administered; and that the first cause assigned, that the indictment did not state facts sufficient to constitute any offense, was too general, and should have been disregarded, as under our statute a motion to quash must distinctly specify the grounds of objection. In that case, it will be seen, this court did not pass upon the effect of the failure to negative the exception referred to, for the reason that the point was not specifically presented in the motion to quash.

1. ABORTION.

All the authorities agree that when the exception constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. State v. Shiflett, 20 Mo. 415; State v. Sutton, 24 Mo. 377; Commonwealth v. Hart, 11 Cush. 130; State v. Barker, 18 Vt. 195. An indictment which should charge simply that the defendant produced an abortion, would charge no offenso under the statute; for abortion is an offense only when it is not necessary, and is not advised by a physician to be necessary to save the life of the mother. For the same reason it would be insufficient to charge...