State v. Mikel

• Citation: 278 S.W. 670
• Decision Date: 22 December 1925
• Docket Number: No. 25778.,25778.
• Parties: STATE v. MIKEL.
• Court: United States State Supreme Court of Missouri

278 S.W. 670

STATE v. MIKEL.

No. 25778.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.

H. F. Mikel was convicted of manslaughter, and he appeals. Reversed and remanded.

E. C. Anderson, of Columbia, and W. C. Irwin, of Jefferson City, for appellant.

Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

HIGBEE, C.

The appellant was charged by information in the circuit court of Boone county with manslaughter. A change of venue was awarded to Cooper county, where, on a trial before a jury, he was found guilty and sentenced to the penitentiary for a term of ten years, from which judgment and sentence he appealed.

The information, based on section 3239, R. S. 1919, charges in substance that on or about January 1, 1923, the appellant produced an abortion and miscarriage upon Opal Garrett, a pregnant woman, "the said promotion, procuring, and production of said miscarriage or abortion not being then and there necessary to preserve the life of the said pregnant woman, the said Opal Garrett, and not being then and there necessary to preserve the life of the unborn child then in the womb of the said Opal Garrett," and that the death of said Opal Garrett resulted therefrom on January 19, 1923, etc.

The statute reads, in part:

"Any person who, with intent to produce or promote a miscarriage or abortion, advises, gives, sells, or administers to a woman (whether actually pregnant or not), or who, with such intent, procures or causes her to take, any drug, medicine, or article, or uses upon her, or advises to or for her the use of, any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such a purpose), shall, in event of the death of said woman, or any quick child, whereof she may be pregnant, being thereby occasioned, upon conviction be adjudged guilty of manslaughter," etc.

Learned counsel challenge the sufficiency of the information for the reason that it fails to allege that the act committed upon Opal Garrett was not performed by a duly licensed physician, and had not been advised by a duly licensed physician to be necessary to preserve the life of the said Opal Garrett or that of an unborn child.

We have italicized the words of the exception which the information fails to negative. In State v. Meek, 70 Mo. 355, 357 (35 Am. Rep. 427), in considering a like challenge to an indictment charging criminal abortion, Judge Hough said:

"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 offense 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 only that abortion was produced when it was unnecessary to save the life of the mother, as it may have been advised by a physician to be necessary to save the mother's life, although in fact it was not so necessary; and in that event the statute declares that the person producing it is guilty of no crime. It is manifest, therefore, that when the exceptions are contained in the clause of the statute defining the offense and constitute a part of the description, the exceptions must be negatived."

In State v. De Groat, 259 Mo. 364,...