Worthington v. State , 56 L.R.A. 353 ( 1901 )

The defendant was indicted in the Criminal Court of Baltimore for manslaughter in causing the death of Amelia A. Miller through an abortion performed on her by him. He demurred to the indictment, and the demurrer being overruled he was convicted and was sentenced to the penitentiary for ten years. Nine bills of exception were taken to the admissibility of evidence, and the questions thus presented, together with the demurrer, are now before us for determination. As the demurrer raises a question of novelty and of some importance in criminal pleading and practice we shall request the Reporter to set out the indictment in full.

The appeal has been ably argued on both sides, and the experienced and distinguished counsel of the defendant addressed a very earnest appeal to us for the correction of the grave errors which he contends were made in the rulings upon the demurrer and upon the evidence, and we have responded in a careful and patient search for any error which would require or would justify a reversal of the judgment.

The proposition upon which the demurrer is based, is, that the death of a woman resulting from a criminal abortion upon her, is, at common law, murder, and the indictment, if it can at all be regarded as an indictment for homicide, is defective, because it charges death as the result of the abortion, but charges the defendant with the crime of manslaughter instead of murder. It is contended that this defect is obvious, from the fact that murder and manslaughter are different crimes and not different degrees of the same crime, and the further fact that there is no statute in this State reducing the character of the crime — when the death of the mother is caused by a criminal abortion — from murder to manslaughter.

The principal reliance for this contention is the case ofState v. Moore, 25 Iowa 137, in which the opinion of the Court was delivered by JUDGE DILLON. The defendant was indicted for murder in the second degree by abortion. The defendant demurred to the indictment on the ground that the offense charged was not murder, because it had been held in Iowa that no act, though indictable at common law, could be punished as a crime unless the act was declared criminal by statute, and it was argued that as the statute defining and punishing murder was passed in 1851, and the statute making the procuring of an abortion unlawful was not passed until 1858, that the latter act, which says nothing about murder, could not make that murder which was not so before. The same question was also raised by a request to the Court to instruct the jury that they might convict of manslaughter, which instruction was refused. The Court held, and as we think properly, that the Act of 1851 being unrepealed, continued to speak in 1858, and had the same force and effect as if it had been passed concurrently with, or subsequent to, to the Act of 1858, and therefore overruled the demurrer. But the question still remained whether, under that indictment, a conviction for manslaughter could be had. Upon that question, the Court cited the passage from LORD HALE, 1 P.C. 429, 430, relied on here, as follows: "If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder; for it was not to cure her of a disease, but unlawfully to destroy the child within her; and therefore he that gives a potion to this end, must take the hazzard, and if it kills the mother it is murder." The Court also cited to the same effect Commonwealth v. Parker, 9 Metc. 263, per SHAW, C.J., and in disposing of the demurrer, said: "The crime we have seen was at common law murder, and under our statute is murder in the second degree. Under the charge, and under the evidence, the defendant was guilty of murder in the second degree or of nothing, and hence the Court did not err in refusing to say to the jury that they might convict the defendant of manslaughter." Too great respect cannot be paid to the opinions of these eminent judges, but it is obvious that there must be some limitations to the doctrine thus alleged to be laid down by LORD HALE, and we are unwilling to adopt it as a hard and fast rule, even though fortified by JUDGE SHAW and JUDGE DILLON; and, as the State's Attorney has pointed out, a careful examination of the chapter from which the above citation was taken, will show that the word murder was not necessarily used in its technical sense, but as equivalent to homicide, embracing both murder and manslaughter.

But whatever may have been the severity of the earlier common law, the proposition is too broadly stated that death resulting from criminal abortion has always been murder at common law. The crime of abortion is a misdemeanor only at common law and our statute, while broadening the scope of the common law, and increasing the punishment, still leaves the crime a misdemeanor. For this reason, as stated in Clark's Criminal Law, p. 161, "causing the mother's death in attempting an abortion, is only manslaughter at common law, if the attempt is not made in a way that endangers the mother's life. In the latter case it is murder." It is only in jurisdictions where abortion is raised by statute to the grade of felony that causing the death of the mother is necessarily murder. Idem., p. 191, 174. Mr. Wharton says in his Criminal Law, sec. 325, that where there is no intent to kill or to inflict grievous injury, and no likelihood of such result, the offense is but manslaughter; and in sec. 318 of his work on Homicide, he says, "whether the offense is murder or manslaughter depends largely on the intent as appearing on the whole case. If the intent was to kill or grievously injure her the offense is murder. It is manslaughter if the intent was only to produce the miscarriage, the agency not being one from which death or grievous injury would be likely to result."

It is common knowledge that death is not now the usual, nor indeed the always probable consequence of an abortion. The death of the mother doubtless more frequently resulted in the days of rude surgery, when the character and properties of powerful drugs were but little known, and the control over their application more limited. But in these days of advanced surgery and marvelous medical science and skill, operations are performed, and powerful drugs administered, by skillful and careful men without danger to the life of the patient. Indeed, it is this comparative immunity from danger to the woman which has doubtless led to the great increase of the crime to the establishment of a class of educated professional abortionists, and to the enactment of the severe statutes almost everywhere found to prevent and punish this offense. The woman takes her life in her hands when she submits to an abortion, be she wife or maid, but her death is no necessary element in the procuring of an abortion, and the application of the harsh rule here contended for would have no effect in the repression of that abhorrent crime, which can only be efficiently dealt with by severity in the enactment and administration of the law punishing the attempt upon the life of the unborn child.

In the late case of Peoples v. Commonwealth, 87 Ky. 492, the law upon this subject is well reviewed, and the doctrine announced in Clark and Wharton, as we have stated it, is approved and adopted. In Regina v. Gaylor, 7 Cox's Criminal Cases, 253, decided in 1857, the indictment was for manslaughter by abortion, and the prisoner was convicted. The evidence showed that the prisoner was clearly guilty of being accessory before the fact to the woman taking the drug with intent to procure an abortion, and the Judge reserved the case for the opinion of the Court of Criminal Appeal. It was heard before POLLOCK, C.B., BRAMWELL and WATSON, BB., and ERLE and WILLES JJ. ERLE, J., before whom the case was tried, said: "This would, in my opinion, be murder if she died in consequence of taking that drug. But thegrand jury found that it was manslaughter. If a man is indicted for manslaughter, and it turns out to be murder, he may be found guilty of manslaughter. In this case I thought he was guilty of murder by administering the drug, and might therefore be convicted of manslaughter."

The Judges affirmed the conviction, but without giving their reasons for doing so.

If the present indictment had been for murder, as it is contended it should have been, there can be no doubt a conviction of manslaughter would have been good; State v. Flannigan,6 Md. 167; State v. Davis, 39 Md. 355; so that the defendant is in the singular position of complaining of an indictment because it does not subject him to conviction for a graver offense than that with which he is charged. But Mr. Wharton says, in sec. 390 of his Criminal Law, "Where there is no intent either to take the life of the mother, or to do her grievous bodily injury, the proper course is to indict separately for the manslaughter of the mother and for the perpetration of the abortion."

Courts in this State constantly instruct grand juries that they ought not to indict, if, upon the evidence produced by the State, they would not convict if sitting as petit jurors, and for the same reason, if, upon the evidence of the State, they would not convict of the higher offense if sitting as petit jurors, they would be justified, with the advice of the State's attorney, in refusing to subject the accused to the danger of conviction upon a charge of which the accusing body would not, upon that evidence, convict him. See Yundt v. People, 65 Ill. 372.

We can discover no defect in this indictment which a demurrer could reach, and we think there was no error in overruling it.

The defendant also contends that the indictment does not charge any form of homicide, but is for the statutory offense of abortion, and that for this reason no dying declaration can be received. But this contention cannot be sustained. It is certain that dying declarations can only be received where the death of the deceased is the subject of the charge and the circumstances of the death the subject of the declaration. 1 Greenleaf's Ev., sec. 156; Wharton's Crim. Ev., sec. 276. But in prosecutions for abortion the death of the woman is no part of the facts which go to constitute the crime. That is complete, with the death or without it. It is not a constituent element of the offense. Railing v. Commonwealth, 110 Pa. St. 100. A comparison of this indictment with our statute defining and punishing abortion, must make it evident that no competent pleader could have so framed an indictment under that statute. It makes no presence of conforming to the fundamental rule of safety — to follow the language of the statute. No inference to sustain the defendants contention can be drawn from the use of the words "without legal justification," because the defense that the act was necessary to save the life of the mother is equally a defense to an indictment for the murder or manslaughter of the mother, and to an indictment under the statute for an abortion. 1stWharton's Crim. Law, sec. 595. The corpus delicti of the offense of abortion is the destruction of the unborn infant, and the form given by Bishop — Directions and Forms, sec. 138 — requires an averment that in consequence of the means used "the life of the said child was then and there destroyed and it was then and there prematurely born;" no averment of this character is to be found in this indictment, which closely follows the form given by Bishop, supra, sec. 528, for general use where thecorpus delicti is the death of the mother. In People v.Olmstead, 30 Mich. 439, where the indictment was for manslaughter by abortion, the Court said: "Manslaughter at common law very generally consisted of acts of violence of such a nature that indictments for murder and manslaughter were interchangeable by the omission or retention of the allegation of malice, and of the technical names of the offenses. The learned Judge before whom this case was tried, in the ruling which counsel reduced to writing and incorporated in the record, has stated the law as clearly as possible in these words: "This is not an indictment for abortion. It is an indictment which charges manslaughter, and the facts of the abortion are simply alleged there as going to show what caused the death, just as if it had been alleged that the means of death were by shooting her with a pistol." There can, therefore, be no doubt that under such an indictment dying declarations are receivable. We now come to the exceptions to the testimony.

Evidence was admitted of three distinct dying declarations made by the deceased; one to Dr. Strauss and to Dr. Jones on Wednesday, two days before she died; one to her mother on Thursday afternoon, the day before she died, and one to her father, mother and sister on Friday, the day of her death. Defendant's counsel in his brief states that the objection to the admissibility of the evidence embraced in the seventh and eighth exceptions is that the indictment is in reality an indictment for abortion under the statute, so that these exceptions may be eliminated without consideration, in view of our determination that the indictment is not for abortion but for homicide. We will add, however, that we have examined them and if deemed material, they would fall within the disposition to be made of the others. The first exception is upon the ground that no proper foundation was laid to justify the admission of any dying declaration. Dr. Conrad Strauss, her attending physician, was called in Saturday night. He saw her once on Sunday and on Monday; twice on Tuesday; twice or three times on Wednesday; once on Thursday, and once on Friday, the day of her death. He detected blood poisoning and suspected an abortion. Until Wednesday he had favorable hope of the case, but she became worse that day, and he became alarmed, and called in Dr. Jones. She constantly declared she expected to die, so repeating daily from Monday up to the time of her death, and begging him to save her as she was dying. He held out hope of recovery but this did not change her belief, she continuing to declare she expected to die. The principle on which dying declarations are received is too familiar to require statement, but it is essential that actual danger of death must exist — that there is full belief that it is actually impending — and that death ensues. Any expressed or clearly visible hope of recovery will render the declaration inadmissible. But the declarant's own belief at the time is the criterion of admissibility. 1stGreenleaf's Ev., sec. 158. It is not material that others, even the physician, thought differently and held out hopes of recovery. People v.Simpson, 48 Mich. 474 (per Cooley, Campbell and Marston);Regina v. Peel, 2 Foster Finlason, 21. The rule in such cases is stated in 2 Taylor on Evidence, sec. 718, as follows: "A firm belief that death is impending, by which is meant, not as once thought, a belief that it will follow almost immediately, but that it will certainly happen shortly in consequence of the injury sustained is sufficient to render the statement evidence, though the sufferer subsequently express a hope of recovery, or may chance to linger on for some days, or even two or three weeks." We think the testimony of Dr. Strauss measured up to the strictest requirements of the law, and that the Court did not err in permitting the State to ask for her declaration.

The proper foundation being laid, Dr. Strauss stated, after exception to the question — what statement she made — that on Wednesday, in the presence of Dr. Jones, she told him Dr. Worthington had committed this abortion on her, but that she did not say what Dr. Worthington — to all which defendant objected, and this constitutes the second exception. It is urged that this does not identify the accused, but this is for the jury. He was free to show that there were other doctors of that name in Baltimore, or to show any other fact which would destroy or impair the weight of her declaration as identifying him. The State produced another Dr. Worthington who swore that he never treated nor saw the deceased, and if there were still others, not discovered by the State, that fact would not be likely to escape the vigilance of the defendant and of his counsel. We think there was no error in this ruling.

The third exception arose in this way. Dr. Jones testified that on Wednesday she declared in his presence she expected to die, and also that she stated who had committed the abortion on her. Counsel for defendant then asked if this was before or after she had declared her expectation that she would die, and he replied that he could not recollect; and counsel objected to his answering the question unless he could first say that it was after she had declared to him her expectation that she would die, but the Court overruled the objection and admitted the question. In this there was no error. It was only necessary that the declaration she expected to die should, infact, precede the dying declaration. Dr. Strauss had already fixed this declaration of belief as made before the dying declaration, both on that day and on the two preceding days. The belief was a continuing belief, as appears from all the circumstances of the case, and we can discover no error in the ruling. This ruling disposes of the fifth exception, which is identical in principle with the third.

The fourth exception arose upon these questions to Dr. Jones — Question by Gov. Whyte.

"Tell us what she said about expecting to live?

Ans. She said she expected to die.

Ques. Did she say so?

Ans. As far as I know. I don't remember the exact words, but only give my impression.

We object unless the words are given.

Ques. by State's Attorney. What was the impression made on your mind as to what she said?" To this question counsel for defense objected, but the Court overruled the objection and permitted the question to be asked. It is manifest that the impression spoken of by Dr. Jones, and asked for by the State's attorney, is not an impression of the subject of the declaration, but of thesubstance, the form in which it was expressed; that, in fact, it was rather the recollection than the impression of the witness which was sought, and which he intended to give. The law does not require that the very words be repeated. Wharton's Crim. Ev., 9th ed., sec. 461. We therefore think this ruling correct.

The sixth exception relates to Dr. Jones' testimony also. He stated she said an abortion had been performed on her, but he could not recollect whether she said by whom. The Court then asked: "Was it stated in her presence by whom this operation was performed? Ans. It was, sir. Ques. Did she assent to that statement? Ans. I believe she did, sir. Ques. Were you present when Dr. Worthington's name was mentioned? Ans. I was, sir. Ques. Mentioned in what connection? Ans. In regard to this abortion. Ques. Who mentioned it? Ans. I don't remember that, sir." The exception seems to be that Dr. Worthington's name was put into the mouth of the deceased. But the declarations may be in response to leading questions, or even to urgent solicitation. 1 Greenleaf's Ev., sec. 159. Bishop'sNew Crim. Procedure, sec. 1213. The assent may be by a mere pressure of the hand, or otherwise. Bishop, supra; Commonwealth v. Casey, 11 Cush. 417. We can perceive no error in this ruling.

The ninth and last exception was taken to the testimony of the deceased's sister, Mrs. Papf, who was present just before she died, when she told the minister, who had come to pray with her, that she was dying in the arms of Jesus, and that Officer Allgire and Dr. Worthington were the cause of her trouble. This exception was not argued before us and is not mentioned in the brief of the defendant, and it is difficult to imagine upon what ground it could be attacked, unless it be for want of identification of the accused, which we have already considered in disposing of the second exception.

Finding no error in any of the rulings of the Court, the judgment must be affirmed.

Judgment affirmed with costs above and below.

(Decided January 16, 1901.)