State v. Shields

• Decision Date: 19 July 1910
• Citation: 130 S.W. 298,230 Mo. 91
• Parties: STATE ex rel. GASTON v. SHIELDS, Judge.
• Court: Missouri Supreme Court

130 S.W. 298

230 Mo. 91

STATE ex rel. GASTON v. SHIELDS, Judge.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. STATUTES (§ 159) — IMPLIED REPEAL — CONFLICT.

A subsequent statute necessarily repeals a prior one, whenever there is between them a conflict and repugnancy so clear that the two cannot stand together.

2. STATUTES (§ 167) — REVISION OF SUBJECT — EFFECT.

A subsequent statute revising the whole subject of a former one, and evidently intended as a substitute therefor, operates to repeal the former, though it contains no express words to that effect.

3. ABORTION (§ 1) — STATUTES — REPEAL — "MANSLAUGHTER" — "MANSLAUGHTER IN SECOND DEGREE" — "FELONY OF ABORTION."

Rev. St. 1899, § 1823 (Ann. St. 1906, p. 1266) provides that for a person to kill any woman by administering to her any drugs or using on her any instrument with intent to destroy a pregnancy, not a medical necessity, should constitute manslaughter. Section 1825 (page 1267) declared that for a person to destroy any quick child while attempting to commit an abortion, unless a medical necessity, should constitute manslaughter in the second degree, and section 1853 (page 1280) made it a misdemeanor to administer to a pregnant woman any drug or to employ any other means with intent to produce an abortion, unless such act was a medical necessity, etc. Act March 20, 1907 (Laws 1907, p. 230) expressly repealed section 1825, and in lieu thereof enacted that any person who, with intent to produce an abortion, advises, gives, sells, or administers to a woman whether pregnant or not, or who, with such intent, procures or causes her to take any drug, medicine, or article, or uses upon her or advises her to use any instrument to produce an abortion (unless necessary to preserve life), etc., shall, in the event of the death of the woman or any quick child whereof she be pregnant, on conviction be adjudged guilty of manslaughter in the second degree, and in case death does not ensue shall be guilty of the "felony of abortion," and shall be punishable accordingly. Held, that every element of the crime of abortion contained in sections, 1823, 1825, and 1853 was included in the act of 1907, and that such act repealed such sections, so that thereafter the administering of a drug to a pregnant woman or the employment of any means (with intent to procure an abortion) was a felony, and not a misdemeanor.

4. ABORTION (§ 1) — ELEMENTS OF OFFENSE — STATUTES.

Act March 20, 1907 (Laws 1907, p. 230) provides that any person who, "with intent to produce or promote a miscarriage or abortion," advises, gives, sells, or administers to a woman whether pregnant or not, or who, with such intent, procures or causes her to take any drug, medicine, or article, or uses on her or advises to or for her the use of any instrument or other method or devise to produce a miscarriage or abortion, not a medical necessity, shall be guilty of a felony, etc. Held, that the word "abortion" was not used in such section in its ordinary sense, to wit, the expulsion of a fetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life, or the delivery or expulsion of a human fetus prematurely, or before it is yet capable of sustaining life, but rather, as the designation of a statutory offense, to distinguish it from other felonies, and that the gravamen of the offense was the intent to produce a miscarriage or abortion by administering drugs or using instruments; the actual production of a miscarriage being unnecessary to complete the offense.

5. ABORTION (§ 1) — OFFENSE — "MISCARRIAGE."

In strictness, abortion is not of itself a crime, since the word "miscarriage" in its legal acceptation does not necessarily include the destruction of the child before birth; nor is a design to cause its miscarriage the same thing as a design to destroy the child.

Petition for a Writ of Prohibition by the State on Relation of Wm. A. Gaston against Geo. H. Shields, as Judge of the St. Louis Circuit Court, Division 10, for the trial of criminal causes. Writ denied.

T. J. Rowe, Henry Rowe, and T. J. Rowe, Jr., for relator. A. N. Sager and C. A. Newton, for respondent.

BURGESS, J.

This is an original proceeding for a writ of prohibition, addressed to the respondent, the Honorable George H. Shields, judge of the circuit court of the city of St. Louis, Division No. 10, for the trial of criminal causes, to prohibit him from entertaining jurisdiction, and from taking any further cognizance of the case of State of Missouri v. William A. Gaston.

Among other things, the petition alleges "that said circuit court has original jurisdiction in criminal causes other than misdemeanors, and that said court has no jurisdiction in criminal causes that are misdemeanors. That on August 31, 1908, there was presented by the grand jurors of the state of Missouri, within and for the body of the city of St. Louis, and filed in the office of the clerk of the circuit court of said city of St. Louis for the trial of criminal causes, an indictment against petitioner in words and figures as follows, to wit: `The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present that William A. Gaston, on or about the 13th day of July, 1908, at the city of St. Louis aforesaid, with force and arms, in and upon one Mabel Thompson, a pregnant woman, then and there willfully, feloniously, and unlawfully, did make an assault; and did then and there willfully, feloniously, and unlawfully use and employ in and upon the body and womb of the said Mabel Thompson, a certain instrument and instruments, the nature and description of which are to these grand jurors unknown, and did then and there willfully and feloniously and unlawfully thrust and force said instrument and instruments into the private parts and womb of the said Mabel Thompson, with the intent then and there to promote and produce a miscarriage and abortion upon and to the person of the said Mabel Thompson, the same not being then and there necessary to preserve the life of the said pregnant woman, to wit, the said Mabel Thompson, and not being then and there advised by a duly licensed physician to be necessary for that purpose; against the peace and dignity of the state." The said indictment, as quoted in the petition, contains three other counts, the language and allegations of which, except the allegations as to the means employed to promote and produce the alleged abortion, are the same as above quoted.

Continuing, the petition states: "That afterwards said cause was assigned to division 10 of said court, and same is now pending therein. That defendant afterwards filed in said court a motion to transfer said cause to the St. Louis Court of Criminal Correction, because the indictment herein charged defendant with a violation of section 1853, Revised Statutes of Missouri, 1899 (Ann. St. 1906, p. 1820), and that the offense denounced by said statute is a misdemeanor. That afterwards, on the 19th day of October, 1908, said motion coming on to be heard was by the court overruled. And the said petitioner herewith exhibits to the court an exemplification under the seal of the said circuit court for the trial of criminal causes and the hand of the clerk thereof, the indictment in establishment of the matters stated in his petition."

The petition further alleges, in substance, that the said indictment is based upon section 1853, Rev. St. 1899, and that under said statute the offense charged in the indictment is a misdemeanor, and that the facts alleged in the indictment show that the offense charged therein is a misdemeanor; that under and by virtue of the statutes in such cases made and provided the said circuit court of the city of St. Louis, division 10, has no jurisdiction to try, hear, or determine the cause, and is entirely without jurisdiction in the premises; that the said George H. Shields, judge of said court will retain jurisdiction of said cause, and continue to wrongfully usurp, arrogate, and assume jurisdiction thereof, and hear, try, and determine said cause, unless prohibited by this court.

For his return to the preliminary rule in prohibition, respondent denies that the offense of abortion alleged in the indictment set out in relator's petition is a misdemeanor, and alleges that under the statute of this state, approved March 20, 1907 (Sess. Acts 1907, p. 230), the offense charged in the indictment is a felony, and within the jurisdiction of said circuit court. Respondent prays that the preliminary writ be quashed, annulled, and set aside. Upon this return the relator moved for judgment, which motion is taken to admit all facts well pleaded in the return.

1. The relator contends that the facts alleged in the indictment set out in the petition constitute the offense defined by section 1853, Rev. St. 1899, while respondent insists that said indictment is bottomed on section 1825, Laws of 1907, p. 230.

Section 1853, Rev. St. 1899, upon which relator contends the indictment is based, is as follows: "Every person who shall willfully administer to any pregnant woman any medicine, drug, or substance, whatsoever, or shall use or employ any means whatsoever with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment; but if the death of such woman ensue from the means so employed, the person so offending shall be deemed guilty of manslaughter in the second degree."

The act of 1907, alluded to, reads as follows: "Section 1. ...