State v. Moothart

Decision Date06 October 1899
Citation80 N.W. 301,109 Iowa 130
CourtIowa Supreme Court

Appeal from Washington District Court.--HON. JOHN T. SCOTT, Judge.

THE defendant was charged by indictment in two counts with attempting to procure miscarriage. In the first it is charged that he "did willfully, feloniously, and unlawfully administer to one Martha Marr, she, the said Martha Marr being then and there a pregnant woman, a certain drug or substance, commonly called 'ergot,' with intent to produce the miscarriage of her, the said Martha Marr, a pregnant woman as aforesaid; the said miscarriage not being necessary to save the life of her, the said Martha Marr." The second count is the same, except that it is alleged that the "drug or substance" was to the grand jury unknown. The defendant was found guilty, and sentenced to imprisonment in the penitentiary for the term of two years and six months, and from this judgment he appeals.


H. & W Scofield for appellant.

Milton Remley, Attorney General, and C. A. Van Vleck for the State.




The defendant's first contention is that the indictment is defective, in that it does not set forth the manner of administering the drug, nor sufficiently describe the drug "and state whether it was liquid, solid or gaseous." It is argued that as there are various forms of drugs, and various ways of administering them, the form of the drug and the manner in which it was administered should be set out. Section 4759 of the Code, under which this indictment is found, is as follows: "If any person, with intent to produce the miscarriage of any pregnant woman, willfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the penitentiary for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars." Section 5289 of the Code provides that the indictment is sufficient if it can be understood therefrom" (5) that the act or omission charged as the offense is stated in ordinary and concise language, with such certainty and in such manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to law upon a conviction." This indictment clearly states as fact that which, if true, constitutes an offense punishable by law, and it is direct and certain as to these facts. See State v. Potter, 28 Iowa 554 State v. Chicago, B. & Q. Ry. Co., 63 Iowa 508, 19 N.W. 299; State v. Brandt, 41 Iowa 593, and like cases cited are not in point. This charge brings the case clearly within said section 4759. Defendant also contends that the indictment is defective for that it does not charge that the drug was taken. It is argued that it could not be "administered" unless taken. If taking is necessary to constitute an administering then to charge that it was administered charges that it was taken. The crime, however, defined in said section 4759, and charged in this indictment, is "attempting to produce miscarriage," and may be committed whether the intended means are used or taken or not, and whether the intended miscarriage is produced or not. The indictment sufficiently charges the crime of "attempting to produce miscarriage."

II. Defendant next contends that the evidence does not show "an administering of the drug." It shows that for some time immediately prior to the matters charged the defendant and Martha Marr were intimate; that he frequently visited her at places where she was living, distant from where he lived; and that they indulged in sexual intercourse which resulted in her becoming pregnant. It shows that it was arranged between them that the defendant should procure and send to her by mail a drug that would produce a miscarriage, and which she was to take for that purpose. The defendant procured a drug called "ergot," which, if taken in sufficient quantity by a pregnant woman, will produce miscarriage, and sent it to Martha Marr by mail. She received the drug, and took two doses, but not in sufficient quantity to produce the intended result. It is argued that, to administer the drug, the defendant must have been personally present, and have given it to Martha Marr to be taken. It is said, "The statute contemplates that the administering shall be as personal and direct as where it uses the words, 'used any instrument.'" The words "used any instrument or other means," as found in said section, do not mean that the accused must have performed an operation in person with the instrument or other means. He uses the instrument or other means when he furnishes them to be applied to the forbidden purpose, and he administers the drug...

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