Walsingham v. State, 40210

• Court: United States State Supreme Court of Florida
• Citation: 250 So.2d 857
• Docket Number: No. 40210,40210
• Parties: Roy Blackburn WALSINGHAM et al., Appellants, v. STATE of Florida, Appellee.
• Decision Date: 12 July 1971

Page 857

250 So.2d 857

Roy Blackburn WALSINGHAM et al., Appellants, v. STATE of Florida, Appellee.

No. 40210.

Supreme Court of Florida.

July 12, 1971.

Jack T. Edmund, of Edmund & McDaniel and Robert E. Pyle, Lake Alfred, for appellants.

Robert L. Shevin, Atty. Gen., and John A. Zebedee, Tallahassee, for appellee.

ADKINS, Justice.

This is an appeal from the Circuit Court of Hillsborough County, having been transferred to this Court from the District Court of Appeal, Second District.

The Appellants were convicted of the offense of conspiracy to commit abortion and, on appeal, contend that the trial court erred in defining the offense of abortion in its instructions to the jury. Also, by motion to dismiss the information, the Appellants attacked the constitutionality of Fla.Stat. §§ 797.01 and 782.10, F.S.A. Our appellate jurisdiction has been invoked by virtue of the order of the trial judge denying the motion to dismiss and thereby passing directly upon the constitutionality of these statutes.

It is well settled that this Court will not decide the constitutionality of a statute where its decision can rest on other grounds. State ex rel. Losey v. Willard, 54 So.2d 183 (Fla.1951); Peters v. Brown, 55 So.2d 334 (Fla.1951). The conviction of the Appellants should be set aside because of the erroneous instruction by the trial judge.

The trial judge instructed the jury as follows:

'(T)he charge here is conspiracy to commit an abortion. In order to define that charge to you, I must define in some fashion the offense of abortion under the Florida law. The Statute pertaining to that is as follows: Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises, or prescribes for her, or causes to be taken by her any poison, drug, medicine, or other noxious thing, or unlawfully uses any instrument or other means whatever with like intent, or with like intent aids, or assists therein, shall, if the woman does not die in consequence thereof, be guilty of performing an abortion.' (Tr. 410)

Fla.Stat. § 797.01, F.S.A., reads as follows:

'Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman does not die in consequence thereof, be punished by imprisonment in the state prison not exceeding seven years, or by fine not exceeding one thousand dollars.'

In Carter v. State, 155 So.2d 787 (Fla.1963), this Court was presented with the question of whether Fla.Stat. § 797.01, F.S.A., should fall because the lack of definitiveness of the word 'unlawfully' resulted in an ambiguity infringing basic concepts of due process in criminal law. In order to uphold the constitutionality of the statute, this Court considered it in pari materia with Fla.Stat. § 782.10, F.S.A., in the following language:

'The legislative history of Sec. 797.01 indicates its original enactment in 1868 as a part of Chapter 1637, Sec. 9 of sub-chapter VIII, Laws of Florida, entitled 'An Act to provide for the Punishment of Crime, and Proceedings in Criminal Cases.' By another provision of the same act, Sec. 11 of sub-chapter III, the legislature defined abortion, for homicide purposes, to be unlawful or forbidden, 'unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.' We conclude that under these circumstances the rule of pari materia construction, in conjunction with the obligation to give, if possible, some reasonable effect to the statutory language, requires a definition of the term 'unlawful' in Section 797.01 in accordance with the companion provision of the homicide statutes prescribing the penalty for certain abortions resulting in death. We therefore construe the subject provision to proscribe and penalize the enumerated acts, performed with the requisite intent, in every instance except when necessary to preserve the life of a woman or 'advised by two physicians to be necessary for such purpose.' This effects a result which is in accord with the apparent intent of the act and which, in any event, is subject to future expression of the legislative will.' (pp. 788, 789)

In re-enacting Fla.Stat. § 797.01, F.S.A., the Legislature is presumed to be aware of the construction placed upon it by Carter v. State, Supra, and, in the absence of clear expressions to the contrary, is presumed to have adopted the construction placed upon it by this Court. See Delaney v. State, 190 So.2d 578 (Fla.1966).

Under the authority of Delaney v. State, Supra, the term 'unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose' became an integral part of the statute and the law of this State.

The trial court's instruction partially quotes Fla.Stat. § 797.01, F.S.A., but no reference whatsoever was made to the proviso contained in Fla.Stat. § 782.10, F.S.A., purportedly setting forth the circumstances under which an abortion may be lawfully performed. Carter v. State, Supra, makes this proviso an integral part of Fla.Stat. § 797.01, F.S.A. The instruction of the trial court left the jury without a standard of lawfulness or unlawfulness with which to assess the acts of the Appellants.

Where the court attempts to define the crime for which an accused is being tried, it is the duty of the court to define each and every element. If the court fails to do this, the charge is necessarily prejudicial to the accused and misleading. Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945). As stated in Croft v. State, 117 Fla. 832, 158 So. 454 (Fla.1935):

'Where the trial court attempts to define the offense, for the commission of which an accused is being tried, it is the duty of the court to instruct the jury as to each and every essential element of the offense charged, and a charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused. It is equivalent to directing the jury that it is not necessary for the state to prove any elements of the offense except those included in the definition given by the court.' (p. 455)

The failure of the trial court to furnish the jury with a standard upon which to determine the lawfulness or unlawfulness of the acts of the Appellants conveyed to the jury the proposition that, if the Appellants were contemplating the abortion of a human fetus, the acts must of necessity be an unlawful abortion. This ignores the limitation placed upon the statute by Carter v. State, Supra. The failure of the trial judge in the case Sub judice to provide a charge which lays down standards for the jury to follow under the varying permissible views of the evidence constituted reversible error. See Barnes v. State, 93 So.2d 863 (Fla.1957).

There was no written request made by the Appellants for any charge relating to the elements of the crime of abortion. However, counsel for Appellants made the following objection after the instruction was given:

'(C)omes now the defendants and each of them, out of the presence of the Jury but before the Jury retires, and excepts to your Honor's instruction as relates to the definition of abortion under the laws of the State of Florida and on the grounds that such definition was vague, incomplete, and improper statement of the law and, in fact, no definition.

'Further, that it places a requirement upon the jurors to make the determination between lawfulness and unlawfulness which is a matter that is solely within the jurisdiction and province of the Court.' (Tr. 424)

This was sufficient to make known to the Court the action which Appellants desired the court to take and their grounds for objecting to the charge as given by the court. See Fla.App. Rule 6.7(g), 32 F.S.A. The objection was a sufficient basis upon which appellate review can be had. Upon such review, we are of the opinion that the cause should be reversed because of the inadequacy of the instruction to the jury.

Without making any determination, it is appropriate that the deficiencies in the present statute be discussed with the hope legislative action may be taken in the future. There are serious questions as to the constitutionality of the statute.

Under Carter v. State, Supra, the acts enumerated in Fla.Stat. § 797.01, F.S.A., are penalized in every instance except when 'necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.'

The Supreme Court of the United States in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (opinion filed April 21, 1971), considered a statute of the District of Columbia which provided in part:

'Whoever, by means of any instrument, medicine, drug or other means whatever, procures or produces or attempts to procure or produce an abortion or miscarriage on any woman, unless the same were done as Necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years; * * *.' 22 D.C.Code § 201. (Emphasis supplied).

It should be noted that the District of Columbia statute penalized the enumerated acts unless the same were done as 'necessary for the preservation of the mother's life or Health,' while the Florida statute penalizes the enumerated acts except when the same were done as necessary for the preservation of the mother's life. In United States v. Vuitch, Supra, the defendant contended that the word 'health' was so imprecise and had so uncertain a meaning that it failed to inform a...