State v. Stafford

• Decision Date: 17 November 1909
• Citation: 123 N.W. 167,145 Iowa 285
• Parties: STATE OF IOWA v. CLARENCE STAFFORD, Appellant
• Court: Iowa Supreme Court

123 N.W. 167

145 Iowa 285

STATE OF IOWA v. CLARENCE STAFFORD, Appellant

Supreme Court of Iowa, Des Moines

November 17, 1909

REHEARING DENIED TUESDAY, DECEMBER 21, 1909.

Appeal from Polk District Court.--HON. W. M. MCHENRY. Judge.

THE defendant was convicted of having attempted to cause a miscarriage, and appeals.

Affirmed.

N Norman Huyck, for appellant.

H. W Byers, Attorney-General, and Charles W. Lyon, Assistant Attorney-General, for the State.

OPINION

LADD, J.

The accused is charged with having administered a certain noxious substance to one Flora B. Smith, she being pregnant, with intent to cause a miscarriage. The evidence leaves no doubt but that at her request he procured cotton root and wintergreen for her, and did bring her a substance he represented to her was what she desired, and that he advised her how to take it. It is equally certain that what he did was with the intent that she take a substance in order to produce a miscarriage, and that she did take it for that purpose.

Whether the drug furnished, when taken, would produce a miscarriage, is not material, save as bearing on the motive with which he acted. State v. Fitzgerald, 49 Iowa 260; Weed v. People, 56 N.Y. 628; Slattery v. People, 76 Ill. 217. Under the decision first cited, the name of the substance need not be alleged in the indictment, and it was not in this case; nor was it necessary that it be proven to have been noxious, though so alleged. Undoubtedly the word "noxious" was used in such indictments at the common law; but it is not in the statute defining the crime. That makes the intent the chief element in the offense. Hence the word "noxious" in the indictment, as it is merely descriptive of the substance, like that of a weapon or wound in charges of murder, may be treated as surplusage. State v. Crews, 128 N.C. 581 (38 S.E. 293). All essential to be proven was that he willfully administered "any drug or substance whatever." That he procured and delivered to her such drug or other substance for the unlawful purpose was sufficient proof that he "administered" it. State v. Moothart, 109 Iowa 130, 80 N.W. 301.

Proof of pregnancy was essential under the statute defining the crime. State v. Stewart, 52 Iowa 284, 3 N.W. 99. Decisions holding otherwise construe statutes materially differing from that of this state. Eggart v. State, 40 Fla. 527 (25 So. 144); Commonwealth v. Follansbee, 155 Mass. 274 (29 N.E. 471). But it was not necessary that she be proven quick with child, as at common law. State v. Fitzgerald, supra. Difficulties in the proof of condition prior to that time are to be encountered; but absolute certainty is not exacted even in a criminal action. All necessary is that the evidence be such as to support the conclusion that the girl was enceinte beyond a reasonable doubt. She and the accused had been indulging in sexual intercourse for more than a year. She had missed her menses on December 25 or 26, 1908, and in January became convinced that she was in a family way, and so informed the accused. With that understanding the drug was procured and taken resulting in her serious illness January 20, 1909, when she was removed to her home, and during the first week in February discharged from her vagina a substance which she testified resembled a blood clot. She was in health, save that she had a cold in December, and the circumstance of missing her menstrual flow twice in succession is not otherwise explained. We are of opinion that the evidence was sufficient to carry the issue as to whether she was pregnant to the jury, even though two physicians expressed the opinion that at so early a period it could not be known with certainty without a microscopic examination or the discovery of the ovum whether she was enceinte. See State v....