Traylor v. State

• Citation: 101 Ind. 65
• Decision Date: 14 March 1885
• Docket Number: 11,899
• Parties: Traylor v. The State
• Court: Supreme Court of Indiana

101 Ind. 65

Traylor v. The State

No. 11,899

Supreme Court of Indiana

March 14, 1885

From the Pike Circuit Court.

The judgment is reversed, and the cause remanded for a new trial.

F. B Posey, J. W. Wilson, W. R. Gardner and S. H. Taylor, for appellant.

F. T Hord, Attorney General, E. A. Ely and W. F. Townsend, for the State.

OPINION

Niblack J.

This was a prosecution for procuring an abortion, which resulted in the death of the pregnant woman. R. S. 1881, section 1923. The indictment was in two counts.

The first charged that "Thomas Traylor, on the 30th day of September, 1883, at and in the county of Pike, and State of Indiana, did then and there, unlawfully, feloniously and wilfully, employ and use a certain instrument, to the grand jurors unknown, in and upon one Anna Poe, who was then and there a woman pregnant with child, and did then and there unlawfully, feloniously and wilfully, introduce said instrument into the womb of the said Anna Poe, with intent then and there, and thereby, to procure and produce the miscarriage of the said Anna Poe, the said Thomas Traylor then and there well knowing that said use of said instrument would produce such miscarriage, and it not being necessary then and there to produce such miscarriage for the preservation of the life of the said Anna Poe, by reason whereof the said Anna Poe languished until the 1st day of October, 1883, and then and there died. And so the grand jurors aforesaid, on their oath aforesaid, do charge and present that the said Thomas Traylor, in manner and form and by the means aforesaid, did then and there, unlawfully and feloniously, kill and murder her, the said Anna Poe.

The second count was in its averments substantially similar to the first, except that it charged Traylor with having administered to Anna Poe a certain noxious substance, to the grand jurors unknown, for the purpose of procuring and producing her miscarriage.

Verdict, finding the defendant guilty as charged, assessing a fine of $ 250 against him and directing that he be imprisoned in the State's prison for the period of seven years. Motions for a new trial and in arrest of judgment were severally overruled, and judgment on the verdict.

The first question made here is upon the sufficiency of the indictment upon the motion in arrest of judgment. In opposition to its sufficiency, it is argued that both counts contained, first, a distinct charge of using unlawful means to procure a miscarriage, and, second, an allegation of facts constituting the crime of involuntary manslaughter, and hence that both were bad for duplicity.

The indictment was not entirely formal in all its parts, and in its structure was somewhat anomalous, but we do not regard either count as having been bad for duplicity. As we construe the concluding paragraphs of both counts, they amounted only to mere specific averments that the death of Anna Poe resulted from the respective efforts of Traylor to procure her miscarriage, and consequently not to charges of involuntary manslaughter, within the purview of section 1908, R. S. 1881. Montgomery v. State, 80 Ind. 338 (41 Am. R. 815); Wood v. State, 92 Ind. 269; State v. Barker, 28 Ohio St. 583.

The next question made for our decision is upon the alleged insufficiency of the evidence to sustain the verdict. It was shown by the evidence that Anna Poe at the time of her death was an unmarried woman about twenty-three years old; that Traylor was an unmarried man...