Evans v. . the People ( 1872 )

The circular was properly received in evidence. The testimony authorized the jury to presume that the defendant had received the envelope, placed by the witness in the post-office, directed to him. (1 Greenleaf's Evidence, § 40.) This envelope inclosed the one in which the circular was received, and which the witness had inclosed addressed to herself in the one addressed to the defendant before mailing the latter. The presumption being that the envelope inclosing the circular was received by the defendant, and this envelope having been mailed to the witness with the circular inclosed therein, the jury were authorized further to presume that this was done by the defendant or under his authority. Besides, the witness, after the circular was received in evidence, testified that in a conversation with the defendant at his office, after she received the circular, she spoke of having received it, and that she was thereby induced to come there, to which the defendant made no reply. This was in effect an admission of the defendant that he had sent the circular to the witness, and would constitute a complete answer to the exception, even if well taken at the time the circular was received in evidence. There was no fatal misnomer in the indictment. The evidence showed that the prosecutrix, at the time the indictment was found, and for some time prior thereto, had adopted the name of Ann O'Neill, and was known by that name only by the persons where she had been living. This identified the person intended with entire certainty, and fully protected the defendant against the danger of another prosecution founded upon the same transaction. The testimony of Youngblood was competent. The defendant had testified that, while in custody upon this charge, he had been called upon by a person who had informed him in substance that the matter could be settled upon the payment by him of a large sum of money. Upon cross-examination, he testified that Youngblood was the person who made such a proposition. Whether any person connected with the prosecution had made attempts to extort money from the defendant was not a question immaterial to the issue. While it did not bear directly upon the question of his guilt or innocence, it did so indirectly by its effect upon the credibility of the witnesses introduced in support of the prosecution. It was proper, therefore, to repel this effect by his testimony, and this was done by showing by him that he had never made any such proposition to the defendant. The judge was right in not receiving the verdict first presented by the jury. That was defective, and no judgment could have been given thereon. It was therefore proper to send the jury out for further deliberation, under proper instructions as to the verdict necessary to a final determination of the case. The judge correctly held, that the defendant could be legally convicted upon the indictment of an attempt to commit the offence charged therein, in case the evidence showed that he had made such attempt, and that he had failed to perpetrate the crime. (2 R.S., §§ 27, 702.) This brings us to the important question in the case. That is, whether the evidence authorized the conviction of the defendant of an attempt to commit the crime charged in the indictment. That crime was manslaughter in the second degree, charged to have been committed by a violation of section 1, of chapter 631, volume 2, 1502, Laws of 1869, which provides that any person who shall administer to any woman with child, or prescribe for any such woman, or advise or procure her to take any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with intent thereby to produce the miscarriage of any such woman, unless the same shall have been necessary to preserve her life, shall, in case the death of such child or of such woman be thereby produced, be deemed guilty of manslaughter in the second degree. Under this section, it is entirely clear that a person guilty of the commission of the acts thereby prohibited, which result in the death of the woman, or of a quick child of which she is pregnant, may be convicted of manslaughter in the second degree. It is equally clear that a person committing such acts with the intent to produce the miscarriage of a woman pregnant with a quick child, and thereby cause its death, may be convicted of an attempt to commit such offence, although the acts may fail to produce the effect intended, that is, the miscarriage of such woman, and are not followed by the death of either the mother or the child. The word miscarriage is used in the statute to designate a premature delivery, including such where it is impossible for the young to survive; although the word may, also, include cases where there is such a probability. The evident intention of the section is to prevent all attempts to produce the miscarriage of a pregnant woman, unless such miscarriage is necessary to the preservation of her life. It will be observed that the section is silent as to any intention of producing the death of the woman or of the child. If the acts were perpetrated with intent to effect the death of the woman and produced that result, the crime would be murder under another statute; but such acts are rarely, if ever, so committed. But as a miscarriage, as the word is used in the statute, almost invariably, if not always, produces the death of the child, it follows that acts done with intent to produce such miscarriage are also done with intent to produce the death of the child; and that as an attempt to produce the former includes an attempt to produce the death of the latter, it follows that an attempt to produce the miscarriage of a woman pregnant with a child whose life is within the protection of the section under consideration, renders the party guilty liable to conviction of an attempt to commit manslaughter in the second degree. But, in the present case, although there was evidence tending to show that Ann O'Neill was at the time pregnant with a quick child, yet this fact was not conclusively proved, but was a question proper for the determination of the jury; and the judge having in effect charged the jury that such question was immaterial, and that the defendant might be convicted of an attempt to commit the crime whether such child was quick or not. The question for the determination of the court, is whether the conviction was proper, upon the assumption that such child was not quick. At common law such an attempt, though successful, was not an offence punishable in any way if done with the assent of the woman. (Commonwealth v. Parker, 9 Metcalf, 263 and authorities cited.) Life, says Blackstone (1 Com., 129), is the immediate gift of God; a right inherent by nature in every individual; and it begins, in contemplation of law, as soon as an infant is able to stir in its mother's womb; and then proceeds to show that the unlawful destruction of such a child was a crime at common law. It thus appears that at common law a child, before quickening, was not considered a living being, and, consequently, no safeguards for its life were provided. The question is whether this is so under the statute, or whether a child, before quickening, is not within its protection. In determining this question it is proper to look not only to the common law but to previous statutes relating to the subject. In 1845 (Gen. Laws, p. 285) an act was passed, by the first section of which any person who should administer, etc., to any woman pregnant with a quick child, with intent to destroy such child, was made guilty of manslaughter in the second degree, irrespective of whether such child was thereby destroyed or not. Section 2 of the act made the administering, etc., to any pregnant woman, with intent thereby to produce the miscarriage of such woman, a misdemeanor punishable by fine and imprisonment. The cases provided for in this section were those where the child had not quickened. Thus, both classes were provided for. The offence of destroying a child before quickening being less in degree than the destruction of one after that period. In 1846 (Laws of that year, p. 19) an act was passed, making the administering to any woman pregnant with a quick child, etc., with intent to destroy such child, in case the death of such child or the mother was thereby produced, manslaughter in the second degree. Section 2 of this act repeals section 1 of the act of 1845, but leaves section 22, the residue of the latter act, in full force. It will be seen that all the alteration made in the act of 1845 by that of 1846, was the making the death of the mother or child essential to constitute the crime of manslaughter in the second degree. This alteration shows clearly that the legislature regarded the law as authorizing a conviction for an attempt to commit the crime specified in section 1 of the act of 1846; otherwise the law, so amended, would leave an abortive attempt to destroy a quick child without any punishment; while a similar attempt to destroy one before arriving at that period was left subject to punishment under section 2 of the act of 1845. This brings us to the act of 1869 (supra), upon section 1 of which the indictment in the present case is founded. The language of this section is: Any person who shall administer, etc., to any woman with child, instead of pregnant with a quick child, as in section 1 of the act of 1845, and in the same section of the act of 1846. This change in phraseology clearly makes section 1 of the act of 1869 include cases not embraced in the same sections in the acts of 1845 and 1846. The latter only include cases of pregnancy with a quick child. The former, by the language used, includes all cases of pregnancy, irrespective of the question whether the child had quickened or not; and clearly makes the death of a child before quickening, by the acts prohibited, constitute the crime of manslaughter in the second degree. The act of 1869 has destroyed all distinction in the offences, placing the destruction of a child before or after quickening upon the same footing. If any additional evidence was required to establish this, it will be found in sections 2 and 4 of the act of 1869. By the latter, section 2 of the act of 1845 and section 1 of the act of 1846 are repealed; they making the procuring of miscarriage, when the child had not quickened, absolutely free from punishment unless embraced in section 1 of the act; and all cases of unsuccessful attempts to procure a miscarriage, not followed by the death of the mother, free from punishment unless the guilty party may be convicted of an attempt to commit the offence specified in section 1 of the act. A construction of the act of 1869, producing such a result, would violate not only the plain meaning of the language used in section 1, but, also, the clear intention shown by the residue of the act. Section 2 of the act of 1869 creates a new offence relating to the same subject, making it a misdemeanor to supply any woman with medicine intended to be used for the purpose of procuring a miscarriage, whether such woman be pregnant or not; thus showing a design to increase the safeguards against this offence instead of relaxing them. Unless a party who administers medicine to a pregnant woman or uses an instrument or other means with intent to procure her miscarriage, and thereby destroy the child, may be convicted of the attempt to commit the crime under the first section, although neither the death of the woman or child is thereby produced, the strange anomaly would be presented that a party, so guilty, would be free from punishment while one supplying medicine to a woman, knowing that it was intended for such use, would be liable to punishment although such medicine was never used, or, if used, produced no effect. My conclusion is that the defendant was rightly convicted of the attempt to commit manslaughter in the second degree. The judgment must be affirmed.

All concur for reversal except GROVER, J., dissenting.

Judgment reversed.