State v. Young
| Decision Date | 08 June 1895 |
| Citation | 55 Kan. 349,40 P. 659 |
| Parties | THE STATE OF KANSAS v. R. M. YOUNG |
| Court | Kansas Supreme Court |
Appeal from Cowley District Court.
AT the September term, 1894, in the district court of Cowley county R. M. Young was prosecuted upon an amended information in which it was alleged:
"That on the--day of May, 1894, at and within the county of Cowley and state of Kansas, one A. R. Wilcox and R. M Young did unlawfully, maliciously, willfully, feloniously, and of their malice aforethought, administer to one Carrie B. Wilcox medicines, drugs and substances, a more particular description of which is unknown to your informant, and did unlawfully, maliciously, willfully, feloniously, and of their malice aforethought, employ at and upon the body of the said Carrie B. Wilcox, a certain instrument, the name and description of which is unknown to your informant, she, the said Carrie B. Wilcox, being then and there a woman, pregnant with a quick child, and with the intent then and there to destroy said child, the same not then and there having been necessary to preserve the life of her, the said Carrie B Wilcox, and the same not having been advised by a physician to be necessary for that purpose, and by means and in consequence of the administering to the said Carrie B. Wilcox of the said medicines, drugs and substances, and by means and in consequence of the said use and employment of said instrument by the said A. R. Wilcox and R. M. Young to and upon the person of the said Carrie B. Wilcox, she, the said Carrie B. Wilcox, then and there being greatly wounded and diseased of her body, and from then until the 13th day of May, 1894, did languish, and on the said 13th day of May 1894, in the county and state aforesaid, she, the said Carrie B. Wilcox, of the mortal wound and disease aforesaid, died and so the county attorney saith that the said A. R. Wilcox and R. M. Young, in the manner and by the means aforesaid, she, the said Carrie B. Wilcox, did unlawfully, feloniously, maliciously, willfully, and of their malice aforethought, kill and murder."
A motion to quash the information because of defect in form and insufficiency in the facts stated was made and overruled. Upon the trial objections were made to the admission of testimony and to the instructions to the jury, and after the defendant had been found guilty of murder in the second degree, motions for a new trial and in arrest of judgment were made and overruled. The defendant appeals.
Judgment reversed and cause remanded.
Pollock & Love, and S. R. Peters, for appellant.
F. B. Dawes, attorney general, S. E. Fink, county attorney, for The State; Beekman & Swarts, of counsel.
OPINION
The attention of the jury was directed to §§ 12 and 14 of the crimes act, each of which describes acts which constitute manslaughter in the first degree, and informed them that these sections were inapplicable to the facts in the case and to the charges made, and also called attention to § 15 of the crimes act, which provides as follows:
"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."
In respect to this section the court stated that it was inoperative, and for that reason it would not be submitted for the consideration of the jury. From the language of the information it would seem that the pleader had drawn it under § 15, upon the assumption that it was operative, and that one who committed the acts there prohibited, being committed in the perpetration of a felony, and that as the death of the woman resulted from the perpetration of such felony, it constituted murder under § 6 of the crimes act. The court has, however, as we have seen, advised the jury that under the testimony there could be no conviction of murder in the first degree or of manslaughter in the first, second, or third degree.
We think that the court rightly held that § 15 is without application or force. It appears to be an attempt to define and establish a degree of felonious homicide where there may be no killing or homicide. The section, supposed to be complete in itself, omits one of the essential elements of homicide, namely, that the death of the child or mother should ensue from the means employed. If the medicine administered or instruments employed on a woman pregnant with a quick child should be used or employed with intent to destroy the child, and when it was not necessary to preserve the life of the mother, or had not been advised by a physician to be necessary for that purpose, and no injury resulted to the mother or to the child, it cannot be possible that the person charged could be convicted of felonious homicide. It was probably not the purpose, nor was it competent, for the legislature to make that a degree of felonious homicide which in truth and in fact is not homicide, and where the acts prohibited and proposed to be punished do not result in death. This section, although it has stood upon the statute-book from the beginning, has never been challenged nor construed. In The State v Watson, 30 Kan. 281, 1 P. 770, it was held that a person prosecuted under § 15 might be convicted of a misdemeanor under § 44, but the acts charged were sufficient to constitute a misdemeanor, and they fairly fell within the terms of § 44. It does not appear that attention was called to the defect in § 15, and under the circumstances there was no necessity to determine whether it authorized a conviction for felonious homicide. The section was apparently taken from the Missouri statute, and the language of both is...
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...no common-law offenses [in Kansas], and there can be no conviction except for such crimes as are defined by statute." State v. Young , 55 Kan. 349, 356, 40 P. 659 (1895).The court's creation of a crime here would be as unconstitutional as any prohibited ex post facto law. "Indeed, an unfore......
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...Supp. 21-5103(a). The prohibition governed Pollman's 2011 case and has been in place for eons. See K.S.A. 21-3102 ; State v. Young , 55 Kan. 349, 356, 40 P. 659 (1895). The legislative intent couldn't be much clearer. If conduct doesn't correspond to what is described in a section of the cr......
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... ... There are no common law crimes in the state, and there can be no conviction except for such crimes as are defined by statute." See State v. Young, 55 Kan. 349, 356, 40 P. 659 (1895) ... "[I]t is an ultimate function of the courts to determine whether a statute or combination of statutes actually proscribes certain [20 Kan.App.2d 830] conduct as criminal." 232 Kan. at 542, 657 P.2d 43. Thus, determining whether certain ... ...