State v. Owens

• Citation: 22 Minn. 238
• Parties: STATE OF MINNESOTA <I>vs.</I> JAY OWENS.
• Decision Date: 13 October 1875
• Court: Supreme Court of Minnesota (US)

Page 238

22 Minn. 238

STATE OF MINNESOTAvs.

JAY OWENS.

Supreme Court of Minnesota.

October 13, 1875.

The defendant was tried in the district court for Ramsey county, at the December term, 1874, upon the following

indictment, under Laws 1873, ch. 9, the two first sections of which are given in the margin:¹

"Jay Owens is accused by the grand jury of the county of Ramsey, by this indictment, of the crime of abortion, committed as follows:

"The said Jay Owens, on the twenty-third day of April, A. D. 1874, at the city of Saint Paul, in this county, did wilfully, unlawfully and feloniously procure one Julia A. Mann, a woman, and then and there being pregnant with a child, to take a large quantity of medicines, or a large quantity of drugs, or a large quantity of noxious, pernicious and destructive substances, the names, ingredients, kinds, quality and quantity of said medicines, or of said drugs, or of said noxious, pernicious and destructive substances, being to the grand jury unknown, with the intent then and there thereby to cause the premature labor of her, the said Julia A. Mann; the taking of said medicines, or drugs, or noxious, pernicious and destructive substances, by her, the said Julia A. Mann, not then and there being necessary to

preserve the life of the said Julia A. Mann, or then and there the life of the said child with which she, the said Julia A. Mann, was then and there pregnant, as aforesaid, by the means whereof the premature labor of her, the said Julia A. Mann, was then and there caused; the said premature labor of her, the said Julia A. Mann, not being then and there necessary to preserve the life of the said Julia A. Mann, or the life of the said child with which she, the said Julia A. Mann, was then and there pregnant, by the means whereof aforesaid, the death of the said child, with which she, the said Julia A. Mann, was then and there pregnant, as aforesaid, then and there resulted; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota.

"Dated at the city of Saint Paul, in the county of Ramsey, Minnesota, the fourteenth day of May, A. D. 1874."

At the time of drawing jurors for such term there remained in the box the names of twenty-seven only of the list of petit jurors selected by the county commissioners for the year 1874, pursuant to Laws 1870, ch. 88, and these twenty-seven were duly drawn and summoned as the petit jury for the first week of the term, beginning December 1. On December 3 the court ordered a special venire for thirty petit jurors to issue, returnable December 7, as the petit jury for the second week of the term, which was issued and returned as ordered. The thirty persons so summoned duly appeared and constituted the petit jury in attendance when the case was called, (on December 10,) at which time, and before any juror was sworn, the defendant interposed a challenge to the panel as not selected in conformity with the law of 1870. The challenge was overruled, and defendant excepted. A jury having been sworn, the defendant objected to the admission of any evidence, because the indictment fails to state any offence, because it does not state that the defendant procured the said Julia A. Mann to take anything whatever, and because the alleged offence attempted to be set forth is set forth in the disjunctive. The objections were overruled and the defendant excepted. Dr. H. C. Hand was called by the prosecution as an expert, and defendant objected, and excepted to his admission to testify as such, on the ground that he had not, on preliminary examination, shown himself competent.

The court — having charged, at defendant's request, in substance, that the jury could not convict the defendant of the offence charged in the indictment unless all the facts constituting such offence were proved beyond a reasonable doubt — added that they might convict of the lesser offence provided against in § 2 of the statute if they should find him guilty "of procuring Julia A. Mann to take drugs or medicines, she being pregnant at the time, for the purpose of causing a premature delivery of the child, the same not being necessary to preserve the life of the mother or the child, although an abortion did not actually result," to which the defendant excepted.

The court further charged the jury, under exception by defendant, as follows: "As to the necessity of resorting to abortion to save the life of the mother or child, there is no question here. There is no pretence of any such necessity upon the case as it stands."

The jury returned the following verdict:

[Title.] "We, the jury in the above mentioned case, find the defendant guilty of the charge in the indictment, as follows:

"That the said Jay Owens, on the 23d day of April, 1874, at the city of St. Paul, in Ramsey county, did wilfully, unlawfully and feloniously procure one Julia A. Mann, a woman, and then and there being pregnant with a child, to take a large quantity of medicines, or a large quantity of drugs, or a large quantity of noxious, pernicious and destructive substances, the names, ingredients, kinds, quality and quantity of said medicines, or of said drugs, or of said noxious, pernicious and destructive substances, being to the jury unknown, with the intent then and there thereby to cause the premature labor of her, the said Julia A. Mann, the taking of said medicines or drugs, or noxious, pernicious and destructive substances by her, the said Julia A. Mann, not then and there being necessary to preserve the life of the said Julia A. Mann, or then and there the life of the said child with which she, the said Julia A. Mann, was then and there pregnant as aforesaid, by the means whereof the premature labor of her, the...