State v. Tennyson
| Decision Date | 06 March 1942 |
| Docket Number | No. 32984.,32984. |
| Citation | 2 N.W.2d 833,212 Minn. 158 |
| Parties | STATE v. TENNYSON. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Hugo O. Hanft, Judge.
Georgiann Tennyson, also known as Ann Tennyson, was convicted of committing an abortion, and she appeals.
Affirmed.
McMeekin & Quinn and John P. Frank, all of St. Paul, for appellant.
J. A. A. Burnquist, Atty. Gen., and James F. Lynch, Co. Atty., and Wm. F. Desmond, Asst. Co. Atty., both of St. Paul, for respondent.
Defendant was convicted of committing an abortion upon one Virginia Schuna, and appeals.
Virginia Schuna was about five and one-half or six months pregnant. A short time prior to March 15, 1941, she consulted her aunt, Mrs. Axtell, with a view to having an abortion. Mrs. Axtell discussed the matter with one Emma Redder, who informed her that she took care of girls upon whom abortions had been performed and that she knew a woman by the name of Ann, who would perform the abortion for $35. On March 15, 1941, Virginia's husband took her to Mrs. Redder's house for the purpose of having Mrs. Redder arrange for the abortion. Mrs. Redder and her husband took Virginia to defendant's home. After defendant ascertained her condition and the duration of her pregnancy, Mrs. Redder suggested that it might not be advisable to perform the abortion, but defendant said that she would do so upon payment of $35. Virginia had only $25 with her. The abortion was not performed that night. On March 21, 1941, Virginia's husband took her to defendant's house. Virginia paid defendant $35. Defendant then took her into a bedroom, placed her on a bed, injected a jelly-like substance into her uterus, and told her that she would have a miscarriage the next day. After defendant had made the necessary arrangements, Virginia went to Mrs. Redder's home, where she took some pills and quinine to help her abort, but without success. Defendant then went to the Redder home where she again injected some of the jelly-like substance into Virginia's uterus to produce an abortion, but this too proved unsuccessful. Subsequently, Virginia gave birth to a child, premature but in all respects normal and healthy. Defendant returned $30 to Virginia because the abortion was not successful.
Such further statement of the facts as is necessary to understand the issue will be made in connection with the discussion of the points raised on the appeal.
1. The witnesses as to the facts constituting the crime were Virginia, her husband, Mr. and Mrs. Redder, and Mrs. Axtell. It is conceded, as the court below held, that all except Virginia were accomplices as a matter of law. The court below held as a matter of law that Virginia was not an accomplice. Defendant contends that this was error. If so, the conviction cannot stand because the testimony of one accomplice cannot be corroborated by that of another. State v. Panetti, 203 Minn. 150, 280 N.W. 181; State v. Scott, 203 Minn. 56, 279 N.W. 832.
Whether the woman upon whom an abortion is performed or attempted is an accomplice of the perpetrator of the act depends on the construction of our statutes defining accomplices and the crime of abortion. Mason St.1927, § 10175, provides:
Id. § 10176, reads:
"A pregnant woman who takes any medicine, drug, or substance, or uses or submits to the use of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is necessary to preserve her life, or that of the child whereof she is pregnant, shall be punished by imprisonment in the state prison for not less than one nor more than four years."
Id. § 9917, so far as here material, provides that "every person who directly or indirectly * * * induces, or otherwise procures another to commit a crime, is a principal."
A woman upon whom an abortion is performed or attempted is not an accomplice in the commission of the offense. State v. Pearce, 56 Minn. 226, 57 N.W. 652, 1065; State v. Owens, 22 Minn. 238. Our rule is supported by the overwhelming weight of authority. Thompson v. United States, 30 App.D.C. 352, 12 Ann.Cas. 1004; Annotation, 12 Ann.Cas. 1009.
Defendant urges, however, that our decisions settling the rule as stated rest upon untenable grounds, in that they entirely ignore the statute defining accomplices and that, in virtue of the statute, the woman by her consent or inducement to the commission of the act is an accomplice.
In State v. Pearce, supra, we held that the woman upon whom an abortion is performed or attempted is not a perpetrator, but the victim of the offense; and we said (56 Minn. page 230, 57 N.W. page 652):
It must be conceded that the reason given for our decision is not sound. The language of §§ 10175 and 9917 admits of no exceptions. It is for the legislature and not the court to create exceptions, if there are to be any. Where a statute is couched in broad and comprehensive language admitting of no exceptions, the court is not justified in engrafting thereon exceptions, however much it may deem the public welfare to require them. State v. Railway Ex. Agency, Inc., 210 Minn. 556, 299 N.W. 657.
Although the reason given for the rule in the Pearce case is indefensible, the rule itself is sound. The rule is based not on an alleged exception for which there is no basis, but on the true meaning of the statutes. Where the purpose is to suppress a practice or transaction which results from the acts of several participants, statutes may provide that the participants shall be guilty of separate crimes. Sections 10175 and 10176 make the offense of the abortionist distinct and separate from that of the woman; they prescribe a separate penalty for each and impliedly exclude each from the penalty for the other. In People v. Vedder, 98 N.Y. 630, 631, cited and followed in State ex rel. Thurston v. Sargent, 71 Minn. 28, 73 N.W. 626, in construing New York statutes similar to ours, the court said:
Where the acts of several participants are declared by statute to constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime. We applied the rule in holding that the giver and taker of a bribe were not accomplices under statutes making the offense of each a separate and distinct crime. State v Durnam, 73 Minn. 150, 75 N.W. 1127; State ex rel. Thurston v. Sargent, 71 Minn. 28, 73 N.W. 626, supra. The plain reason is that an accomplice must participate or be concerned in the commission of the specific crime with which the defendant is charged. The test is whether or not the alleged accomplice could be indicted and punished for the crime with which the accused is charged. State v. Sweeney, 180 Minn. 450, 231 N.W. 225, 73 A.L.R. 380; State v. Smith, 144 Minn. 348, 175 N.W. 689; State v. Gesell, 137 Minn. 43, 162 N.W. 683.
The test for determining who are accomplices is the same in abortion as in other cases. Where, as here, the statutes provide that the person performing or attempting an abortion and the woman upon whom the abortion is performed or attempted shall be guilty of separate and distinct crimes, the woman is not an accomplice in the offense. Thompson v. United States, 30 App. D.C. 352, 12 Ann. Cas. 1004, supra; State v. Carey, 76 Conn. 342, 56 A. 632; People v. McGonegal, 136 N.Y. 62, 32 N.E. 616; People v. Vedder, 98 N.Y. 630, supra; Wilson v. State, 36 Okl.Cr. 148, 252 P. 1106; State v. Cragun, 85 Utah 149, 38 P.2d 1071, and numerous cases cited in the annotation in 12 Ann.Cas. 1009. There are some cases to the contrary, like State v. McCoy, 52 OhioSt. 157, 39 N.E. 316; Wells v. New England Mut. L. Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R. A. 327, 71 Am.St.Rep. 763, and a few others, which we have examined and find to be opposed to sound reason and the weight of authority.
If the rule for which defendant contends were followed, the person committing the abortion and the woman submitting thereto would be guilty of two crimes in every case instead of one, in virtue of the statute defining accomplices. The woman would be guilty under § 10175 as a principal in the crime...
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