State v. Morrow

• Decision Date: 11 December 1893
• Citation: 18 S.E. 853,40 S.C. 221
• Parties: STATE v. MORROW.
• Court: South Carolina Supreme Court

18 S.E. 853

40 S.C. 221

STATE v. MORROW.

Supreme Court of South Carolina

December 11, 1893

Appeal from general sessions circuit court of Richland county; W. H Wallace, Judge.

James H. Morrow was convicted of administering medicine to a woman with intent to cause an abortion, and appeals. Affirmed.

Following is the court's charge to the jury, together with its reasons for overruling the plea to jurisdiction:

"Gentlemen of the Jury: The real issue in the case, or issues, are within a narrow compass, and, when I have explained them to you, I will have nothing more to say. The indictment is brought under the following statute: 'That any person who shall administer to any woman with child, or prescribe for any such woman, or suggest to, or advise, or procure her to take any medicine, substance, drug, or thing whatever, or who shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with the intent thereby to cause or procure the miscarriage, or abortion, or premature labor of any such woman, unless the same shall have been necessary to preserve her life, or the life of such child, shall, in case the death of such child or such woman result, in whole or in part, therefrom, be deemed guilty of a felony.' There are two counts in the indictment, one charging the defendant with having procured and advised the taking of a certain drug with the intent to produce abortion, and that in consequence of such abortion, the death of the woman was produced. That is the first count. That is your first inquiry,--whether or not this defendant did that. If he did, he is guilty, under this act; if he did not, he is not guilty, under this first section of the act. In order to convict him under this act and on this indictment, you must be satisfied beyond a reasonable doubt of his guilt. You don't decide this case as you decide cases on the civil side of the court, by the preponderance of the testimony because whenever a defendant is brought into court and tried on a charge of any violation of the criminal laws of the state, no matter how small or inferior the crime may be, he comes into court under the legal presumption of innocence. Every man, in other words, is presumed to be innocent until he is proven guilty; but, when the testimony in this case establishes his guilt beyond a reasonable doubt, then the presumption of innocence fades out of the case, and the jury must so find. But, unless that presumption of innocence is rebutted, it stands in lieu of proof of innocence; and it so stands until the weight of evidence satisfies the jury beyond a reasonable doubt of his guilt. And, when it does, then he must be found guilty if it does not do that, he must be acquitted. The second count in the indictment is brought under the second clause or section of this statute, and that clause of the statute is as follows: 'That any person who shall administer to any woman with child, or prescribe, or procure, or provide for any such woman, or advise or procure any such woman to take, any medicine, drug, substance, or thing whatever, or shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or procure the miscarriage, or abortion, or premature labor, of any such woman, shall, upon conviction thereof, be punished,' etc. That section is the same as the other, as far as it goes. The other provides that if the defendant shall do what is in this section, and the death of the woman result, then his crime is a felony. If he should do what this section provides, and no death should result therefrom, but only an intent to procure abortion is established against him, by the means recited in this statute, then the act does not declare that act to be a felony; and, in order to convict him of that, you will have to be satisfied beyond a reasonable doubt that he attempted to procure an abortion,--intended to do it,--by the means stated here in the section I have read to you. Those are the issues, Mr. Foreman and gentlemen,--those are the only issues. Whether they have been proven or not is for you to decide. Whether they have been proven beyond a reasonable doubt is for you to determine for yourselves. If you are satisfied beyond a reasonable doubt that either or both of these offenses are made out, you will have to convict him according to the degree of offense described in the act and set forth in the indictment. If you are not satisfied beyond a reasonable doubt that he procured an abortion, intending to do it by the means prescribed in the act, you will have to say 'Not guilty' on the first count. If you are of opinion, and are satisfied of it, beyond a reasonable doubt, that he attempted to procure an abortion,--intended to do it,--by the means set out here in this act, but that such means did not accomplish his purpose, but that the abortion was procured by other means, to which he was not a party, then you cannot convict him on the first count, but may on the second, if you are satisfied beyond a reasonable doubt.

"The solicitor asks me to charge you: 'That if the jury believe from the evidence, beyond a reasonable doubt, that the defendant, James H. Morrow, administered to Colie Fowler while with child, or prescribed or procured or provided for said woman while with child, or advised or procured said Colie Fowler, while with child, to take, any medicine, drug, substance, or thing whatever, with intent thereby to cause or procure the miscarriage or abortion or premature labor of said Colie Fowler, he is guilty of the offense charged in the indictment.' I charge you that in its application to the second count in the indictment. That request does not contemplate the death of the woman. 'Second. That, under the second section of the act, it is not necessary to prove that the defendant actually administered the noxious drug, or actually advised the use of any instrument or any other means, to bring about an abortion; but that, if the jury believe beyond a reasonable doubt that, from the evidence in the case, the defendant, by his counsel and advice, induced the deceased to resort to any such means, or to make any such effort to bring about the abortion or premature birth, then the defendant is guilty under the second count of the indictment.' I charge you that. There is no difference of opinion on the other side in regard to it. I do not know that it is necessary I should say anything else to you. I have undertaken to make as clear as I could what the act is. I have undertaken to make clear to you what the real issue of the case is,--what you have to decide,--and that issue is one of fact. Did the defendant, by anything he did within the scope of the means described in the act, endeavor to procure abortion upon Colie Fowler, and that, in consequence of such intent and conduct upon his part, an abortion was produced, and death ensued? If you are satisfied beyond a reasonable doubt, he is guilty on the first count. If you are not satisfied beyond a reasonable doubt, you must acquit him on the first count. If you should acquit him on the first count, then you may inquire as to the second count, which merely charges him with the intent and an effort to procure the abortion. If you are satisfied beyond a reasonable doubt that he did, then you must convict him on that count. If you are not satisfied beyond a reasonable doubt that he did, then you must acquit him on the second count. If you are not satisfied beyond a reasonable doubt that the defendant is guilty, why, you will have to say 'Not guilty.' If you are satisfied beyond a reasonable doubt that he is guilty on the first count, then you may simply write the word 'Guilty' on the back of the indictment, for that will include it. But if you are not satisfied beyond a reasonable doubt that he is guilty of the first count, and are satisfied beyond a reasonable doubt that he is guilty on the second count, then say 'Not guilty' on the first count, but 'Guilty' on the second count. If you are not satisfied beyond a reasonable doubt that he is guilty of either, say 'Not guilty.' Take the record."

Judge Melton, (addressing the court:) "The rule, as I understand it, is that the plea with reference to the jurisdiction of the court can be entertained at any time. Now, I beg to say to the court that I interposed the plea at the very first moment I could, because it couldn't be interposed except during the argument."

The Court: "That is not a matter for the jury, which is the reason I have said nothing to them about it. It is a matter entirely for the court. I may say I think the court has jurisdiction. I own there is room for difference of opinion about it; but, from what thinking I have been able to do in regard to it, I have reached the conclusion that the court has jurisdiction, for this reason: The act alleged was committed in this state. To illustrate: Suppose a man in a foreign jurisdiction should procure a firearm, and charge it with suitable ammunition, intending to use it against a person in this state. So far there is no crime, no offense so far as I know, against the law of any foreign jurisdiction,--not a matter of which any foreign jurisdiction could take cognizance. But if he comes in this state, having prepared himself, formed his intention in a foreign jurisdiction, and executes his purpose here, the offense is committed here, and he is within the jurisdiction of this court. Suppose a man in a foreign jurisdiction prepares what is sometimes described as an 'infernal machine,' intending to use it upon a person in this state. His intention is formed, and the means of death are prepared in a foreign jurisdiction,--no offense committed still. But when he comes in this jurisdiction, or...