Williams v. State

The information in the case charged:

"That heretofore, to wit, on or about the 25th day of July, 1914, in the county of Greer, state of Oklahoma, Cy Williams, B.V. Henson, R.A. Baird, C.P. Walker, Maud Marshall, Lola Fulson, J.W. Chambers and W.T. Perry, did then and there unlawfully, willfully and feloniously, conspire, agree and confederate together to commit the crime of procuring the miscarriage of a pregnant woman, said miscarriage not being necessary to preserve the life of said pregnant woman, and in furtherance, and in pursuant of said agreement, they procured Maud Marshall, a woman, whom they believed to be pregnant, to leave Oklahoma City, in the state of Oklahoma, and come to Mangum, in the county of Greer, state of Oklahoma, and secured rooms at the Harris Hotel, and had the said Maud Marshall placed therein for the purpose and with the intent of having a physician to advise said Maud Marshall to take medicine, drug or substance or submit to the use of some instrument to effect a miscarriage on the said Maud Marshall, said miscarriage not being necessary to preserve the life of said Maud Marshall; and in furtherance of said agreement and conspiracy they secured the service of G.F. Border, a physician and surgeon residing in said city of Mangum, to advise said Maud Marshall to take some medicine, drug or substance, or submit to the use of some instrument to effect said miscarriage and produce the same; and in furtherance of said agreement and conspiracy the defendants secured rooms at the Harris Hotel in said city of Mangum and had said Maud Marshall placed in said rooms and informed the said G.F. Border that the said Maud Marshall was ready to receive said advice or to have said instrument used in procuring said miscarriage.

"And the defendants did then and there, in the manner and form as aforesaid, unlawfully, willfully and feloniously commit the crime of conspiracy as defined in the first subdivision of section 2232 of the Revised Laws of Oklahoma of 1910, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

A demurrer to the information on the ground that it did not state facts sufficient to constitute a public offense was duly filed, overruled, and exception allowed.

On motion of the county attorney, the case against W.T. Perry, Lola Fulson, and Maud Marshall was dismissed.

Upon the trial the verdict of the jury was as follows:

"We, the jury impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the following defendants: Cy Williams, B.V. Henson, R.T. Baird, C.P. Walker, and J.W. Chambers — guilty, and leave their punishment to be fixed by the court."

Motions for new trial and in arrest of judgment were duly filed, and overruled, and the court sentenced each of the said defendants to be confined in the county jail for five months and to pay a fine of $500.

To reverse the judgments rendered on verdict, an appeal was duly perfected.

Various errors are assigned upon the record, and the questions presented have been ably and elaborately argued by counsel on both sides, both orally and in the briefs. However, it is neither important nor necessary to consider more than one or two of the questions presented. Counsel for plaintiffs in error contend that the information is insufficient to charge a conspiracy to commit the crime of abortion, in that it fails to allege that the woman therein named was pregnant. It is further contended that the conspiracy alleged in the information was not proved, in that there was no evidence of overt acts in pursuance of and to effect the object of the conspiracy. In this connection, while the question of jurisdiction was not challenged in the trial court, the question is raised in this court. The following are the provisions of the Penal Code upon which the information was based:

Section 2232, Rev. Laws 1910:

"If two or more persons conspire, either: First, to commit any crime; or, second, falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; or, third, falsely to move or maintain any suit, action or proceeding; or, fourth, to cheat and defraud any person of any property by any means which are in themselves criminal, or by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses; or, fifth, to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws — they are guilty of a misdemeanor."

Section 2234, Rev. Laws 1910:

"No agreement to commit a felony or to commit a misdemeanor amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement."

Section 2436, Rev. Laws 1910:

"Any person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year."

It is averred in the information that it charges a "conspiracy" as defined by the first subdivision of section 2232,supra, and the case was entirely regarded in the court below and was tried and submitted upon the theory that the information charged only a conspiracy to procure an abortion on the particular female therein named. The information charges that the defendants did "conspire, agree and confederate together to commit the crime of procuring a miscarriage of a pregnant woman, said miscarriage not being necessary to preserve the life of said pregnant woman." The record shows that the court refused instructions requested by the defendants to the effect that the jury must find that the woman, Maud Marshall, was a pregnant woman before they would be warranted in convicting them, and that the court sustained objections to evidence offered showing or tending to show that the woman, Maud Marshall, was not at any time pregnant, on the theory that it was immaterial as to whether or not she was in fact pregnant.

To sustain the verdict and judgments of conviction, the state relies upon the case of Queen v. Whitchurch et al., as reported in 8 Am. Crim. Rep. 1. The Whitchurch Case was an indictment charging a woman who was not in fact with child with conspiring with others, all believing her to be pregnant, to procure an abortion on herself. The court held the prosecution would lie. The statute upon which the prosecution was based appears in the official report. 24 Q.B.D. 420. The language of the English statute is:

"Whosoever with intent to procure a miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony."

The Dominion of Canada and the states of Massachusetts, Maryland, Florida, and Iowa have enacted statutes similar to the English statute.

Under section 2436, supra, the pregnancy of the female is an essential element of the offense. It follows that the doctrine of the Whitchurch Case is not in point, and decisions based on similar statutes have no application to the instant case.

As to the position that the county court of Greer county was without jurisdiction, the defendants by their counsel in their argument say:

"Assuming for the purpose of argument only that the information and evidence may be held sufficient to show a conspiracy to produce an abortion, we contend that there is an entire lack of evidence of any overt act in Greer county under any theory of the case, and clearly an overt act in Greer county would be necessary to confer jurisdiction on the county court of that county."

Under the statute, section 2234, supra, the crime of conspiracy to commit a felony or misdemeanor is not complete "unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement," and, where a conspiracy to commit a crime is charged, it is necessary that the information contain, in addition to an allegation of the conspiracy to commit the particular crime, an allegation of some overt act or acts done in furtherance and pursuance thereof. It will be observed that the statute making the overt act an essential element of the crime does not apply to all conspiracies, but only to those which have for their object the commission of a crime.

The uncontroverted evidence is that the conspiracy was formed and entered into in Oklahoma county and the alleged overt acts were committed in Greer county. It is well settled that a prosecution for conspiracy to commit a crime may be had in any jurisdiction wherein an overt act in pursuance of the conspiracy is committed. The rule rests on the reason that each overt act is deemed a renewal of the conspiracy. Thus in People v. Mather, 4 Wend. 231, 24 Am. Dec. 122, it was said:

"The law considers that, wherever they act, there they renew, or, perhaps, to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design."

And see Hyde v. U.S., 225 U.S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.

The question is whether the overt acts alleged and the proof thereof were sufficient to give the county court of Greer county jurisdiction.

The constitutional guaranty gives the accused the right of trial by jury of the county wherein the crime shall have been committed (Bill of Rights, sec. 20), and our Code of Criminal Procedure provides that —

"When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county." Section 5612, Rev. Laws 1910.

Under the statute (section 2234, Rev. Laws), the crime of conspiracy is not complete without the commission of an overt act. Therefore the overt act may be the sole basis of local jurisdiction. However, it must be something more than evidence of the conspiracy. It must be an act to effect its object.

The overt acts alleged are that the defendants "procured Maud Marshall, a woman whom they believed to be pregnant, to leave Oklahoma City and come to Mangum, in the county of Greer, and there secured rooms and had the said Maud Marshall placed therein for the purpose and with the intent to have a physician to advise said Maud Marshall to take medicine, drug, or substance, or submit to the use of some instrument to effect a miscarriage on the said Maud Marshall," and in furtherance of said conspiracy "secured the service of G.F. Border, a physician and surgeon residing in the said city of Mangum, to advise the said Maud Marshall to take medicine, drug or substance, or submit to the use of some instrument to effect the said miscarriage and produce the same, and informed the said G.F. Border the said Maud Marshall was ready to receive said advice or to have said instrument used to produce said miscarriage."

Nowhere in the information is it alleged that the woman, Maud Marshall, was in fact pregnant, and there was no competent testimony tending to show that the defendants had reason to believe or did believe at the time that the woman, Maud Marshall, was pregnant.

An "overt act" is one done to carry out the intent, and it must be such as would naturally effect that result. Whether a certain act was in pursuance of the conspiracy depends entirely upon what the conspiracy was, and upon whether the parties conspired to accomplish their purpose by the means alleged. Where a conspiracy to commit a crime is established, any act in pursuance of the conspiracy and to effect its object is sufficient to give the court jurisdiction in the county where the act was committed. It is said that a conspiracy to commit a particular crime is essentially of the nature of an attempt to commit the crime.

Bishop says:

"We have already seen, in a general way, that to a certain extent conspiracy is a species of attempt. And —

"The act of conspiring, and the specific intent to accomplish what constitutes a substantive crime, and in combination a criminal attempt, and it is the professional usage to term it conspiracy. It follows the same rules, and is subject to the same limitations, as other attempts."

2 Bishop's New Crim. Law, sec. 191.

Wharton says:

"Conspiracy, when its object is to effect an indictable offense, is subject in the main to the limitations heretofore expressed with regard to attempts." 2 Wharton, Crim. Law (11th Ed.) sec. 1605.

And again:

"The only safe course is to make the test objective, even and palpable, and to apply universally the limit here presented, holding that conspiracy does not lie unless the defendants can be proved to have done something which, if not interrupted by extraordinarily natural occurrences or by collateral human intervention, would have resulted in an unlawful act." Wharton, Crim. Law (11th Ed.) sec. 1603.

An attempt to commit a crime can only be made under circumstances which, had the attempt succeeded, would have constituted the substantive offense.

"By the weight of authority, if, as a matter of law, the completed act accomplished as intended would not be a crime, the attempt to commit it is not criminal, whatever may be the party's state of mind. For example, it is not a crime at common law to procure an abortion with the consent of the woman, where she is not quick with child; and therefore an attempt to procure an abortion under such circumstances is not indictable, though the party may not know that the child has not been quickened." Clark and Marshall, Criminal Law (2d Ed.) p. 190.

The conspiracy alleged was to procure the crime of abortion. In order to constitute the crime of "abortion" as defined by the statute, the woman, Maud Marshall, must have been pregnant at the time the alleged overt acts were committed in Greer county.

Where the statute makes pregnancy an essential element of the offense, it must be alleged and proved, and, where the jurisdiction of the court depends solely on an overt act alleged in the information for conspiracy to commit a crime, it must be alleged with all the definiteness and certainty of any other jurisdictional fact, and the connection between the overt act and the conspiracy charged must be made to appear specifically by necessary recitals. 12 C.J. 625.

Considered in connection with the proof, the information is defective in failing to allege that the woman, Maud Marshall, was at the time pregnant.

The evidence showed the conspiracy was entered upon in Oklahoma City; that the defendants procured Maud Marshall, a woman not shown to be pregnant, to leave Oklahoma county and go to Greer county with several of the defendants, for the purpose of setting a trap by which Dr. G.F. Border was to be induced to consent to perform an abortion on the woman, Maud Marshall; that there, to induce him to agree to perform an abortion, one of the defendants informed Dr. Border that he would pay for the operation, and that the woman, Maud Marshall, was ready to receive advice to take some medicine or substance to procure a miscarriage, and they set up a dictagraph to take his advice.

There is no conflict in the evidence with respect to what the defendants did in Greer county, and there is no evidence to show their intent was to have an abortion performed. The evidence showed their purpose was to induce Dr. Border to advise the woman, Maud Marshall, to take some medicine or drug to procure a miscarriage; the object of the defendants being thereby to injure his character and standing professionally and politically.

Our Code of Criminal Procedure provides:

"Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment or information, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment may be given in evidence." Section 5883, Rev. Laws 1910.

There being no evidence of an overt act in furtherance of a conspiracy to procure an abortion having been committed in Greer county, it follows that the county court of Greer county did not have jurisdiction to render the judgments appealed from.

The judgments herein are therefore reversed.

ARMSTRONG, J., concurs.

MATSON, J., disqualified and not participating.