State v. Montifoire

• Decision Date: 09 February 1922
• Citation: 116 A. 77,95 Vt. 508
• Parties: STATE v. H. N. MONTIFOIRE
• Court: Vermont Supreme Court

116 A. 77

95 Vt. 508

STATE v. H. N. MONTIFOIRE

Supreme Court of Vermont

February 9, 1922

November Term, 1921.

INFORMATION in five counts for procuring an abortion, under G. L. 7013. Plea, not guilty. Trial by jury at the March Term, 1921, Franklin County, Fish, J., presiding. Verdict and judgment of guilty. The respondent excepted. The opinion states the case.

Judgment reversed, and cause remanded.

C G. Austin & Sons and Warren R. Austin for the respondent.

M H. Alexander, State's Attorney, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

Sometime in the summer of 1920 Sadie Warner, an unmarried girl eighteen years of age, established such relations with James Eaton, an unmarried youth twenty-four years of age, that she became pregnant. She promptly reported her condition to Eaton, who applied to the respondent, a practicing physician at St. Albans, to help the girl out of her trouble. He told the respondent of his relations with the girl and of her condition, and asked the respondent for some pills to "bring her around." This interview with the respondent was in the evening and about the first of December. The respondent thereupon made up a package of tablets, wrote directions thereon, and gave them to Eaton, who paid for them and took them to the girl. The latter took some of them without result. On the evening of December 12th, Eaton and the girl went to the respondent's office to get some more pills for the same purpose. The respondent then gave the girl another package of tablets, with directions for their use, and said if they did not help her to come back and he would "fix her up." Eaton paid the respondent for these tablets. They had no effect on the girl, and on the evening of December 20th, Eaton and the girl again went to the respondent's office, and the respondent performed an operation upon her, for which Eaton paid him twenty dollars, and which at once started menstruation, which continued until January 22, 1921, when the girl became most desperately ill and miscarried. Her attending physician, as a result of what she told him, summoned the respondent to the sanitarium to which she had been removed, and he came in haste. He was very nervous, and told the girl not to say anything about the operation, as it would get him into trouble.

All this was within the fair tendency of the State's evidence and came mostly from Eaton and the girl, both of whom were witnesses.

The respondent told a very different story. He admitted furnishing the tablets, but he said they were only for a cold and were given for nothing else. He admitted placing the girl upon an operating table, but he insisted that it was only for the purpose of making an examination to determine whether she was pregnant. He denied performing an operation, and stoutly maintained that all he did was to make the examination suggested. He testified that he steadfastly refused to do anything to bring on a miscarriage, and denied that he told her to say nothing about an operation. He was prosecuted and convicted under G. L. 7013.

At the close of the evidence, the respondent moved for a verdict, and when this motion was overruled he excepted. One of the grounds specified in this motion was, in effect, that the corpus delicti had not been proved.

The statute referred to defines the offence in very comprehensive terms. It provides that one "who wilfully administers or advises or causes to be administered anything to a woman pregnant, or supposed by such person to be pregnant, or employs or causes to be employed any means with intent to procure the miscarriage of such woman, or assists or counsels therein, unless the same is necessary to preserve her life," shall be punished as therein provided. G. L. 7013.

Under such a statute, it is not necessary to prove that the respondent manually administered the drug or thing in question; it is enough that he furnished it. McCaughey v. State, 156 Ind. 41, 59 N.E. 169. It is not necessary to show that the substance administered is of a noxious character, or that it possessed qualities efficient to produce a miscarriage (Com. v. Morrison, 82 Mass. 224; State v. Shaft, 166 N.C. 407, 81 S.E. 932, Ann. Cas. 1916C, 627), or that the woman took it (Com. v. Morrison, supra), or that she was actually pregnant (1 C. J. 312), or that a miscarriage resulted. State v. Brown, 3 Boyce 499, 85 A. 797, State v. Longstreth, 19 N.D. 268, 121 N.W. 1114, Ann. Cas. 1912D, 1317.

All that need be shown to warrant a conviction is that the respondent purposely did some of the things prohibited by the statute intending thereby to procure the miscarriage of a woman pregnant or supposed by him to be, and that such miscarriage was not necessary to save her life.

The respondent makes much of the claim that the miscarriage of January 22d adds nothing to the proof against him, because the size of the placenta showed that the alleged operation was not performed, and the fact that the girl had a fall after December 20th that might have brought on the miscarriage. Suppose this is so; it does not result in a lack of proof of the corpus delicti. As we have seen, the statute does not require an operation or even a miscarriage. If both are here rejected enough remains to sustain the conviction. That this girl was pregnant at all times here material is abundantly established by the record. The knowledge of the respondent of this condition and the intent with which the tablets were supplied could be proved by circumstantial evidence (State v. Jones, 4 Penne. 109, 53 A. 858), and in view of the testimony of Eaton and that of the girl it cannot be said that the State utterly failed on this branch of the case. To be sure, Eaton was an accomplice of the respondent, and his testimony was to be considered in view of that fact. But we have no rule of law requiring such testimony to be corroborated, in order to sustain a conviction. State v. Potter, 42 Vt. 495; State v. Dana, 59 Vt. 614, 10 A. 727; Taft v. Taft, 80 Vt. 256, 67 A. 703, 130 Am. St. Rep. 984, 12 Ann. Cas. 959. And if we had, he was, in many important particulars, corroborated by the girl, who is regarded by the law as a victim and not an accomplice. State v. Smith, 99 Iowa 26, 68 N.W. 428, 61 Am. St. Rep. 219; Com. v. Boynton, 116 Mass. 343; Com. v. Turner, 224 Mass. 229, 112 N.E. 864.

That the excepting clause in the statute enters into the definition of the crime and presents an essential element of the offence must be admitted. State v Stevenson, 68 Vt. 529, 35 A. 470. This being so, the burden was on the State to prove that in this case a miscarriage was not necessary to preserve the life of the girl. State v. Wells, 35 Utah 400, 100 P. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631; State v. Brown, 3 Boyce 499, 85 A. 797; State v. Shoemaker, 157 Iowa 176, 138 N.W. 381; State v. Longstreth, 19 N.D. 268, 121 N.W. 1114, Ann. Cas. 1912D, 1317; State v. Lee, 69 Conn. 186, 37 A. 75. In the case last cited it was held that, inasmuch as the ability to bear children is the rule, and necessary abortions the rare exception, there is a presumption against the necessity therefor, which answers the requirements of this rule until evidence of the necessity comes into the case, just as the presumption of sanity answers until evidence of insanity appears. There is much to be said in support of this view, but it is not...