State v. Whitney

• Decision Date: 08 June 1909
• Citation: 54 Or. 438,102 P. 288
• Parties: STATE v. WHITNEY. [d]
• Court: Oregon Supreme Court

102 P. 288

54 Or. 438

STATE v. WHITNEY. ^[d]

Supreme Court of Oregon

June 8, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

G.B Whitney was convicted of manslaughter, and he appeals. Reversed and remanded, with directions to sustain demurrer to the indictment, and for further proceedings.

The defendant was indicted by the grand jury of Multnomah county for the crime of manslaughter in the following language "G.B. Whitney is accused by the grand jury of the county of Multnomah, and state of Oregon, by this indictment, of the crime of manslaughter, committed as follows: The said G.B Whitney on the 20th day of March, A.D.1908, in the county of Multnomah, and state of Oregon, did feloniously and voluntarily kill one Mabel Wirtz, by voluntarily giving and administering unto her, the said Mabel Wirtz, on the 14th day of March, 1908, in the said county and state, one suppository containing bichloride of mercury, a deadly poison, from the effects of which deadly poison, so given and administered she, the said Mabel Wirtz, became mortally sick, and being so mortally sick, did languish from such sickness until the said 30th day of March, 1908, when the said Mabel Wirtz, in said county and state, died from the effects of such deadly poison, so voluntarily given and administered unto her," etc. The defendant demurred to this indictment, for the reason that it does not state acts constituting an offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended, and that the facts stated do not constitute a crime, which was overruled by the court. Upon the trial a verdict was returned against defendant, finding him "guilty of manslaughter as charged in the indictment." From a judgment thereon defendant appeals.

Wm. P. Richardson and John A. Jeffrey, for appellant.

Geo. J. Cameron, Dist. Atty., and J.J. Fitzgerald, for the State.

EAKIN J. (after stating the facts as above).

Defendant was a practicing dentist at Forest Grove, Washington county, Or. The decedent was employed in a millinery store, and resided with her mother in Portland, who had recently removed from Forest Grove to that city for the benefit of her children, who had employment there; the father remaining at Forest Grove, where he conducted a business. At the trial it appeared that defendant had been keeping company with the decedent about three months, and he testified that they were engaged to be married. There was evidence tending to show that, a few days prior to the illness of decedent, the defendant had procured from a drug store at Forest Grove, and delivered to decedent, a suppository of bichloride of mercury, to be used by decedent to avoid pregnancy, which was administered through the vagina, resulting in mercurial poisoning, from the effects of which decedent died within about two weeks from the time she first complained of illness. The statute (section 1746, B. & C. Comp.) under which this indictment was attempted to be drawn, provides: "If any person shall, in the commission of an unlawful act, or a lawful act without due caution or circumspection, involuntarily kill another, such person shall be deemed guilty of manslaughter." This, in substance, is the common-law definition of involuntary manslaughter. 4 Black. Com. 191; section 1745, B. & C. Comp., is also common-law voluntary manslaughter, viz.: "If any person shall, without malice, express or implied, and without deliberation, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kill another, such person shall be deemed guilty of manslaughter." By section 1303, B. & C. Comp., the indictment must contain a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. Under section 1308, B. & C. Comp., the indictment must charge but one crime, and in one form only.

The indictment in this case does not charge voluntary manslaughter under section 1745, B. & C. Comp., although it charges that he "did feloniously and voluntarily kill Mabel Wirtz," because it sets forth none of the acts constituting an offense under that section. Probably the words "feloniously and voluntarily," as used in the indictment,...