State v. Jones

Lore, C. J.:

—The majority of the Court hold that the first two counts of this indictment are sufficient. The second section of the statute (Rev. Code 930), under which this indictment is framed, is as follows:

“ Section 2. Every person who, with the intent to procure the miscarriage of any pregnant women or women supposed by such person to be pregnant, unless the same be necessary to preserve her life, shall administer to her, advise, or prescribe for her, or cause to be taken by her any poison, drug, medicine, or other noxious thing, or shall use any instrument or other, means whatsoever, or shall aid, assist, or counsel any person so intending to procure a miscarriage, whether said miscarriage be accomplished or not, shall be guilty of a felony,” etc.

The statute includes the cause and the effect. The giving of the medicine, or the use of the instrument is the cause; the miscarriage is the effect. In the indictment, the giving of the medicine, and the miscarriage are united in one clause, in the following words: That the prisoner “ unlawfully and feloniously with intent to procure miscarriage of one Sarah Clancey, she the said Sarah Clancey, then and there being a pregnant woman, then and there supposed by the said Jesse K. Jones to be pregnant, did administer to her the said Sarah Clancey certain medicine (the same not being necessary to preserve the life of her, the said Sarah Clancey).”

This clause is indivisible, includes and joins together the miscarriage as well as the giving of the medicine, and the negative clause, viz: “ the same not being necessary to preserve the life of her the said Sarah Clancey,” negatives the miscarriage in that clause, as clearly as it does the giving of the medicine. We think under any proper rules of construction the two are incapable of separation.

We therefore are of opinion that the first and second counts of the indictment sufficiently negative miscarriage.

Boyce, J., concurred.