State v. Miller

• Decision Date: 05 July 1913
• Docket Number: 18,253
• Parties: THE STATE OF KANSAS, Appellee, v. ALICE M. MILLER, Appellant
• Court: Kansas Supreme Court

133 P. 878

90 Kan. 230

THE STATE OF KANSAS, Appellee, v. ALICE M. MILLER, Appellant

No. 18,253

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Sedgwick district court, division No. 1.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ABORTION--Information--Charge Sufficient under Statute. The legislature, by section 2532 of General Statutes of 1909 made the willful administration to any pregnant woman of any medicine, drug or substance whatsoever, or the employment or use of any instrument or means whatsoever, with intent thereby to procure an abortion or the miscarriage of such woman, with no medical advice or necessity therefor, a misdemeanor, regardless of the character of the things administered or used.

2. The Term "Means Whatsoever" Construed--Ejusdem Generis. The term "any instrument or means whatsoever" is not limited by the rule of ejusdem generis, rules of construction applying only in case ambiguity or uncertainty calls for aids to a correct construction of a statute.

3. Bill of Particulars in Criminal Case--Judicial Discretion. The matter of requiring a bill of particulars in a criminal case is discretionary and when no abuse of discretion is shown no error is committed in refusing such bill.

4. INSTRUCTIONS--To Entire Panel at Opening of Term. The statute prescribes the time and manner of instructing juries, and if at the opening of a term it is thought best to address the panel generally touching their duties, care should be used to avoid suggestions or statements likely to influence their decision when called upon later to sit in a given case.

5. ABORTION--Statement of Prosecutrix as to Parentage of Child--Competent Evidence. The theory of the state was that the father brought his daughter to the defendant to be relieved of a trouble which he had caused, and that she was received by the accused for the accomplishment of such purpose. Having formerly stated that a brother was the cause of her condition, the daughter testified that she thought he was, and was then asked if any other person had had intercourse with her along about that time, to which she answered, "Yes,--father." Held, competent as tending to show the real situation and the knowledge and motive of the defendant.

6. Evidence that Midwife Filed Certificate of Birth of Child--Competent. The accused, a registered midwife, attempted to show that a few days after the birth of the child she made out and forwarded to the local registrar a certificate of birth, and for that purpose offered, among other things, a copy of such certificate, certified by the state registrar to be a true copy of the certificate on file in his office, which was refused. Held, that such document was receivable under section 369 of the civil code, and was competent to show the defendant's conduct and connection with the matter forming the basis of the charge against her.

7. Instructions Relative to Circumstantial Evidence Should Have Been Given. While much direct evidence was introduced, the guilt of the accused depended upon the interpretation and probative force of the circumstances shown by such evidence, and it was error to refuse the usual instruction as to circumstantial evidence, and give none on that subject.

8. Argument of Counsel--Vituperation. While counsel should present their cause free from personality and vituperation, still the provocations and limits which should be considered and observed are primarily within the discretion of the trial court, and unless comments upon the evidence and character of the accused are so improper and unwarranted as to prejudice the jury against him and deprive him of a fair trial they will not justify a reversal.

9. NEW TRIAL--Newly Discovered Evidence--Cumulative. Motions for new trial on the ground of newly discovered evidence, when not supported by a sufficient showing of diligence, and when such evidence is cumulative or merely contradictory of that already given, may properly be denied.

S. B. Amidon, D. M. Dale, Jean Madalene, and B. F. Hegler, all of Wichita, for the appellant.

John S. Dawson, attorney-general, George McGill, county attorney, R. C. McCormick, deputy county attorney, and W. A. Blake, deputy county attorney, for the appellee.

OPINION

WEST, J.:

The defendant appeals from a conviction of the offense of employing means and administering substances with intent to procure an abortion and miscarriage. Six hundred ninety-seven pages of abstracts, two hundred seven pages of briefs, and one hundred three assignments of error are presented for our consideration, and such brevity of statement as is possible under the circumstances will be used in giving our views.

Section 2532 of General Statutes of 1909, under which the information was drawn, reads as follows:

"Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or 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, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment."

The information charged that the defendant "from the 5th day of December, A. D. 1911, and each day thereafter until the 12th day of December, A. D. 1911, . . . did then and there during each said days unlawfully, willfully and intentionally cause one Goldie Chadwick to walk and run in and about a certain room and up and down flights of stairs, and . . . did then and there unlawfully, willfully and intentionally administer to her, the said Goldie Chadwick, certain medicines, drugs and substances, a more particular and definite description of which your informant is unable at this time to give, for the reason he does not know the same, she, the said Goldie Chadwick, being then and there at all of said times a woman pregnant with child"; followed by the allegations that the intent was to produce an abortion and miscarriage and that there was no necessity or medical advice for such acts. It is vigorously urged that the absence of an allegation that the walking and running and the medicine given were calculated to produce an abortion and the failure to charge the kind of substances administered render the information bad, and that the doctrine of ejusdem generis precludes embracing within the charge other than means kindred to the giving of drugs and the use of instruments. But viewed from a practical and common-sense standpoint it is clear enough that the defendant was very well advised that she was called on to meet a claim by the state that she had used the means indicated with the intent to produce an abortion and miscarriage. The legislature has made such conduct a crime without stopping to provide that the medicine, instruments or means used be such as are calculated to produce the intended result. The rule of ejusdem generis is merely one of construction, and like all the rest is useless when the intention is so plain as to require no resort to canons of construction. Such rules and canons are of use only when ambiguity or uncertainty calls for aids to a correct solution. (The State v. Prather, 79 Kan. 513, 516, 100 P. 57; 36 Cyc. 1119.) To make assurance doubly sure the legislature has enacted the common-sense rule into law and provided that "Words and phrases shall be construed according to the context and the approved usage of the language." (Gen. Stat. 1909, § 9037, subdiv. 2.) The phrase "any instrument or means whatsoever" carries the facial evidence of a legislative intent to cover the extent of the criminal machinations and devices of the abortionist in order to protect the pregnant woman and the unborn child. Whatsoever in the law, like whosoever in the gospel, is a word of the widest import. It is suggested that while one might administer a known deadly poison which would imply the intent to take life, he might give a substance not known to him to be naturally productive of an abortion, and hence to charge him criminally it would be necessary to aver knowledge. The fallacy of this argument as applied here lies in the fact that the statute has made it a crime to administer anything with intent thereby to procure an abortion or miscarriage, thus making the act and intent sufficient regardless of the character of the substance administered.

Error is assigned on the refusal of the court to require a bill of particulars, and The State v. Reno, 41 Kan. 674, 21 P. 803, is cited as fixing the Kansas rule. That, too, was a misdemeanor case, and the court said a bill of particulars might in the discretion of the trial court have been required, but that "such bill of particulars will be required only in cases where the indictment or information does not of itself definitely and specifically set forth the facts, but sets them forth only vaguely or in such general terms that the defendant could not well know what he is required to defend against." (p. 679.) While some states do not recognize the practice at all, in most courts the requirement is discretionary. (The State v. Lindgrove, 1 Kan.App. 51, 41 P. 688; Rosen v. United States, 161 U.S. 29, 40 L.Ed. 606, 16 S.Ct. 434; Dunlop v. United States, 165 U.S. 486, 41 L.Ed. 799, 17 S.Ct. 375; 22 Cyc. 371.)

In Mathis v. State, 45 Fla. 46, 34 So. 287, the supreme court of Florida gave an exhaustive review of the authorities, English and American, showing that the matter is one of discretion. No material abuse of discretion is...