State v. Russell

• Decision Date: 01 April 1916
• Docket Number: 13132.
• Court: Washington Supreme Court
• Parties: STATE v. RUSSELL.

156 P. 565

90 Wash. 474

STATE v. RUSSELL.

No. 13132.

Supreme Court of Washington

April 1, 1916

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Annie K. Russell was convicted of abortion, and she appeals. Affirmed.

Wilson R. Gay, of Seattle, for appellant.

Alfred H. Lundin, W. F. Meier, and Jos. A. Barto, all of Seattle for the State.

MORRIS C.J.

Appeal from a conviction upon an information charging abortion by the use of certain instruments. The first error charges a defect in the information in failing to allege the manner in which the instruments were used. This same error was urged and overruled in State v. Gaul, 152 P. 1029; it there being held that the information need not allege the name of the instrument nor the manner of its use. What is said in the Gaul Case and the authorities there cited disposes of this contention, and the information is sustained.

It is next urged that the lower court erred in sustaining an objection to a question propounded the prosecuting witness by appellant asking her to name the man she blamed for her condition. The ruling was correct; the paternity of the child not being an issue. People v. T. Wah. Hing, 15 Cal.App. 195, 114 P. 416.

Neither is pregnancy an issue under our statute (Rem. & Bal. Code, § 2448) which reads as follows:

'Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall----

'(1) Prescribe, supply, or administer to a woman, whether pregnant or not, or cause her to take any medicine, drug or substance; or,

'(2) Use, or cause to be used, any instrument or other means. * * *'

This statute, and similar ones in other states, is substantially derived from the English statute on the same subject. Its proper interpretation, in so far as it is designed to punish an attempt to produce a miscarriage by any of the means mentioned in the statute to any woman, whether pregnant or not when such attempt is made with an unlawful intent, is given in 1 R. C. L. 77, as follows:

'Prior to the enactment of the English statete which expressly dispensed with the necessity of pregnancy, an earlier statute punished any one who, 'with intent to procure the miscarriage of any woman,' should administer any medicine, or use any instrument, etc., and it was held that, though the woman was not, in fact, pregnant, a conviction could be had. In a number of jurisdictions in the United States similar statutes have been enacted, and the courts have followed the construction placed on the English statute, and have held that one who with the intent to procure the miscarriage of a woman administers to her any drug, etc., or uses upon her any instrument, is punishable though the woman is not in fact pregnant.'

The same rule is recognized and stated in 1 C.J. 312. This interpretation is sustained without exception in all states having similar statutes. The Massachusetts statute provides that:

'Whoever with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug,' etc. Rev. Laws, c. 212, § 16.

Based upon this statute, the ruling has uniformly been that it was unnecessary either to allege or prove pregnancy. Commonwealth v. Tibbetts, 157 Mass. 519, 32 N.E. 910; Commonwealth v. Follansbee, 155 Mass. 274, 29 N.E. 471; Commonwealth v. Taylor, 132 Mass. 261.

The Florida statute (Rev. Stat. § 2619) is similar to that of Massachusetts, and under it pregnancy is held to be immaterial. Eggart v. State, 40 Fla. 527, 25 So. 144. In Powe v. State, 48 N. J. Law, 34, 2 A. 662, under a statute making the attempt to cause a miscarriage in a pregnant woman an essential element of the crime, it was held that the intent irrespective of the actual knowledge of pregnancy, was the test of the crime.

Appellant's argument in...