State v. Watson

• Court: Kansas Supreme Court
• Writing for the Court: VALENTINE, J.:
• Citation: State v. Watson, 30 Kan. 281, 1 P. 770 (Kan. 1883)
• Decision Date: 01 July 1883
• Parties: THE STATE OF KANSAS v. C. C. WATSON

1 P. 770

30 Kan. 281

THE STATE OF KANSAS v. C. C. WATSON

Supreme Court of Kansas

July 1, 1883

Appeal from Chase District Court.

PROSECUTION under § 15 of the act regulating crimes and punishments. Upon the verdict against the defendant Watson, the court December 22, 1882, sentenced him to pay a fine of $ 50 and the costs of the prosecution, and to stand committed to the county jail until the same were paid. From this judgment he appeals. The opinion states the case.

Judgment affirmed.

S. N Wood, F. P. Cochran, and Waters & Ensminger, for appellant.

S. P Young, county attorney, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution, upon information, under § 15 of the act regulating crimes and punishments, charging the defendant with feloniously administering medicines, drugs and substances to Mary Brown, a woman who was then pregnant with a quick child, with the intent and for the purpose of destroying such child. The information was undoubtedly sufficient. The defendant, however, filed a plea in abatement, alleging that he had never had any preliminary examination with regard to said offense. A trial was had upon this plea in abatement, before the court without a jury, and the court found in favor of the plaintiff and against the defendant, and overruled the plea in abatement. The case was then tried upon its merits before the court and a jury, and the jury found the following verdict, to wit:

"We, the jury in the above-entitled cause, do find defendant, C. C. Watson, guilty of a misdemeanor, in administering medicine to Mollie Brown with the intent to produce abortion under § 44 of the crimes and punishments act, guilty."

Upon this verdict the court below rendered judgment in favor of the plaintiff and against the defendant, for the sum of fifty dollars fine and costs of suit, and that the defendant stand committed to the county jail until such fine and costs were paid. From this judgment the defendant appeals to this court.

Section 15, under which the defendant was prosecuted, reads as follows:

"SEC. 15. Every person who shall administer to any woman, pregnant with a quick child, any medicine, drug, or substance whatsoever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for that purpose, shall be guilty of manslaughter in the second degree." (Comp. Laws of 1879, ch. 31, p. 329.)

Said § 44, under which the defendant was found guilty, reads as follows:

"SEC. 44. Every physician, or other person, who shall willfully administer to any pregnant woman any medicine, drug or substance whatsoever, or shall use or employ any instrument or 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 the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment." (Comp. Laws of 1879, ch. 31, p. 332.)

The defendant claims that the court below erred in overruling his plea in abatement, and committed several errors during the trial of the case upon its merits, and erred in overruling his motion for a new trial and his motion in arrest of judgment, and in rendering the judgment it did render upon the verdict of the jury.

The first question properly arising in this case is, whether the offense prescribed by § 15 of the act regulating crimes and punishments, of administering medicines, drugs and substances to a woman pregnant with a quick child, with the intent to destroy such child, includes the offense prescribed by § 44 of said act, of administering medicines, drugs and substances to a pregnant woman, (whether the foetus is quick, or not,) with the intent to procure abortion or miscarriage, whether the intent is also to destroy the foetus, or not. We are inclined to think that the said offense prescribed by § 15 includes both offenses, though we arrive at this conclusion with some doubt. Both offenses involve the administering of some kind of medicine, drug or substance to a pregnant woman, with a wrongful intent; and the wrongful intent, under § 15, is to destroy an unborn quick child, while the wrongful intent, under § 44, is to procure an abortion or miscarriage. The offenses under both sections necessarily involve the intent to procure an abortion or miscarriage; for it is impossible to destroy an unborn quick child, or a foetus, whether quick or not quick, without procuring an abortion or miscarriage. Every person is presumed to intend the necessary and natural consequence of his own deliberate and premeditated acts.

In the present case, the woman became pregnant by the defendant in January, 1880, and the medicines, drugs and substances administered to her were oil of tansy and ergot, and they were so administered to her by him from about the last of February, 1880, up to about the 4th of June, 1880, and for the purpose of destroying the child. Now if the foetus was in fact a quick child, then the defendant committed a felony, under said § 15; but if the foetus was not yet quick, then the defendant committed only a misdemeanor, under § 44 of said act. The jury probably entertained a reasonable doubt as to whether the foetus was quick, or not, and giving defendant the benefit of the doubt, found him guilty only of the misdemeanor. If the charge for the felony also included the misdemeanor, as we think it did, this kind of verdict is allowable. (Crim. Code, §§ 121, 122; The State v. O'Kane, 23 Kan. 244.) We do not think that the court below committed error in permitting such a verdict to be found, and in rendering judgment thereon.

The defendant claims that the court below committed several errors, which, as we think, have reference only to the case as a prosecution for a felony; and hence as the defendant was not found guilty of the commission of a felony, or punished for a felony, such alleged errors, even if they were errors, we think cannot be considered as of any consequence as the case is now presented to this court.

It seems to be conceded that district courts have original jurisdiction in cases of misdemeanor; but whether conceded or not, such is the case. (Comp. Laws of 1879, ch. 28, § 1; Laws of 1869, ch. 61, §§ 1, 2; The State v Granville, 26 Kan. 158.) And it also seems to be conceded that district courts have original jurisdiction in cases of misdemeanor like the present, whether a preliminary examination has first been had or not; but whether conceded or not, we think such is also the case. In 1868 justices of the peace, under § 1 of the act regulating the jurisdiction and procedure before justices of the peace in cases of misdemeanor, had exclusive original jurisdiction, coextensive with their respective counties, in all cases of misdemeanor in which the fine could not exceed $ 500 and imprisonment could not exceed one year. (Gen. Stat. of 1868, ch. 83, § 1.) But in 1869 that section was amended, and the original section was repealed, so that ...