Lee v. State 124 Miss. 398, 86 So. 856

Lee v. State.

[86 South. 856,

No. 21256.]

1. Homicide: Death of woman from abortion either “murder” or “manslaughter.”

A person producing an abortion solely for the purpose of relieving the woman of the child which results in her death, though produced with her consent, is guilty of either murder or manslaughter, regardless of whether the child with which the woman was pregnant was quick; of “murder” under section 1227, Code- of 1906, Hemingway’s Code, section 957, if the act by which the abortion was produced is eminently dangerous to, or evinces a depraved heart regardless of, human life; “manslaughter” 'under section 1244, Code of 1906, Hemingway’s Code, section 974, if the act by which the abortion was produced is not eminently dangerous to, and does not evince a depraved heart regardless of, human life.

2. Homicide. Statute prescribing form of indictment covei’s all homicides both statutory and, common law.

Section 1431, Code of 1906, Hemingway’s Code, section 1187, which prescribes the form of an indictment for homicide, covers all homicides, both statutory and common law.

3. Criminal Law. Testimony of deceased witness on committing trial may be proved although defenddnt charged with murder.

Qn a trial for manslaughter the evidence of a deceased witness *399who testified on the committing trial may he proven, although on the committing trial the defendant was charged with murder.

4. Cbimikai, Law. Harmless error as to statements in presence of jury no ground fo¡r new trial.

Statements in the presence of the jury hy the judge and district attorney which might he prejudicial to the defendant are no ground for a new trial when the verdict returned hy the jury ''s correct.

Appeal from circuit court of Alcorn comity.

Hon. C. P. Long, Judge.

F. E. Lee was convicted of manslaughter, and he appeals.

Affirmed.

George T. Mitchell, for appellant.

It was my contention in the court below, and ivas so conceded by the state and so held by the court in his written opinion that we have no statute covering the offense in question. If, therefore, the defendant could be prosecuted at all, it was by reason of some offense against the common law. The state conceded that the child was not quick at the time of the alleged abortion and therefore neither' section 1234, Code 1906 or Hemingway’s Code, section 965, are applicable. The court below in rendering his opinion on the motion to exclude, said that if it were not for section 1525, Code 1906, Hemingway’s Code, section 1287, the state would necessarily have no case, and the motion would have to be sustained. Section 1525, Code 1906, Hemingway’s Code, 1287, provides that “every offense not provided for by the statutes of this state shall be indictable as heretofore at common law.” I insist, therefore, that as the offense for which this defendant was indicted was not a statutory offense, but was simply an offense at the common law, and that he could be held accountable only by reason of the above-mentioned section, he should have been indicted according to the common law and not according to the statute. The indictment in *400this case is simply a statutory indictment, charging that the defendant did unlawfully, wilfully and feloniously kill and slay Mary Miller, a human being. The section above referred to says that for common-law offenses, not provided for by statute, the parties shall be indicted as heretofore at common law. It is unnecessary for me to cite authorities to the effect that the. common law requires the pleader to insert in the indictment the manner and means by which the death was brought about.

“Where a statute merely declares the punishment of an offense known at common law and does not employ any descriptive terms, the indictment must be framed in accordance with common-law forms.” 22 Cyc. 342, par. D.

In the case of State v. Prude, 76 Miss. 543, this court held that an indictment charging that the defendant “did feloniously kill and slay an unborn quick child of said Emma Prude” was not a good indictment under the code section for the reason that the manner and means were not set forth in the indictment. “In the absence of a statute obviating the necessity for such averments, the indictment must contain a statement of the manner and means of the killing.” 21 Cyc. 841, par. D.

I have been unable to find any case in our reports where an indictment based upon a charge similar to this failed to set out the manner and means of the killing. In the case of State v. Proctor, 102 Miss. 792, 59 So. 890, the district attorney, proceeding under the common law, in recognizing that the common law required the manner and means of the killing to be set forth, specifically sets forth all the facts in regard to same. In the case of Smith v. State, 73 So. 793, where defendant was indicted for an attempted abortion, the district attorney charged specifically the necessary acts constituting the offense. I insist that no case can be found where an indictment has been held valid whether drawn under the statutes in question or according to the common law, that did not set out the manner and means of the killing.

*401It may be argued, however, that we should have demurred to the indictment in the court below, and that by failing to do so we have waived our right to question the form of the indictment. In answer to this, I simply say that the indictment as drawn was a correct indictment according to certain facts. We could not demur for the reason that the indictment upon its face ivas a good indictment. As was said by this court in the case of State v. Peck, 48 So. 819, where a statutory indictment was preferred :

“When the state offers its evidence to prove the crime, if it fail to make out a case, then the prosecution should be dismissed; but that is beyond the question presented here by either the demurrer or the motion to quash.” In the court below, at the conclusion of the state’s testimony, defendant made a motion to exclude the testimony because the charge in the indictment had not been substantiated. This motion covered everything. In the recent case of Covington County v. Morris, 84 So. 462, this court, in a civil case held that on request for a peremptory instruction, the defendant is not required to then and there point out specifically the reasons upon which he bases his request for the directed verdict but the request raises the point as to whether the plaintiff has proven his case in all of its essential requirements.

I submit, therefore, that we adopted the course provided by law and were entitled to the benefit of our objection to the indictment at the conclusion of the State’s testimony, and that the indictment not being in accordance with the common-law form, was not sufficient and that our motion' should have been sustained oh that ground alone.

The next proposition to which I wish to address myself is that, conceding everything that the state contends for in this case, defendant was not guilty of any offense. However revolting and shocking it may be, we have no statute covering the performance of an abortion except where the child is quick. Until the child-is quick, the destruction of the child does not constitute any offense against our *402statutes. The only two sections we have are 1234, Code 1906, Hemingway’s Code, 964, and section 1235, Code 1906, Hemingway’s Code, 965. In both these sections it is specifically said that the child must be quick. All the testimony for the state shows conclusively that the child was not quick when the alleged operation was performed, and therefore, as Aims said by the court below in his written opinion and as was conceded by the state, no offense was committed against the statute laws of the state. In the Prude case and the Peek ease, supra, the indictments specially charged that the child was quick. In the Proctor ease, 102 Miss. 792, 59 So. 890, it Avas not stated as to whether or not the child was quick, but the point was not made in that case and I therefore take it for granted that it was conceded that the child was quick. Not being any offense against the statute laws of the state, the only remaining question is as to whether or not it constituted a violation of the common law. I submit that it did not. 1 Corpus Juris, page 312, par. 10. Our court has seen fit to align itself with the majority courts, because in the Prude case, supra, our court adopted the folloAving announcement of the common laAV:

-“An infant in the mother’s Avomb, not being in rerum natura, is not considered as a person who can be killed within the description of murder, and therefore, if a Avoman being quick or great Avith child, take any potion to cause an abortion, or if another give her any such potion, or if a person strike her, whereby the child within her is killed, it is not murder or manslaughter,” Citing 3 Russell on Crimes, page 6; Wharton on Homicide (2 Ed.), sec. 303; Wharton’s American Criminal Law (6 Ed.), sec. 942; McLain on Criminal Law, sec. 294; Abans v. Foshee, 66 Am. Dec. 91, and note. I submit therefore that the offense charged and attempted to be proven is not a violation "of any statute or of the common law and that a motion to exclude the testimony for the state and direct a verdict for the defendant should have been sustained.

*403Tlie court below went off on the idea that the alleged offense was contrary to good morals and that therefore some offense must necessarily have been committed. However strongly we may be in favor of upholding good morals, yet in the enforcement of the criminal law, unless a certain act is condemned either by the statute or the common law, no punishment can be inflicted, even though such act may be contrary to good morals.

The next proposition to which I wish to address myself is the action of the court below in permitting the state to introduce the testimony of B. H. Strong, since deceased, delivered at the preliminary trial of the matter before the justice of the peace, and to introduce in evidence the hotel register kept by said Strong at the Clopton Hotel. This court has held that the testimony of deceased witnesses delivered on a former trial, between the same parties, involving the same issue, and at a time when he is subject to cross-examination by the defendant, can be admitted in evidence. I submit that the testimony pffered does not fall within the requirements of the law. In the trial before the justice of the peace the defendants were charged with murder, while in the present instance, the defendant was simply charged with manslaughter. In the case of Dukes v. State, 80 Miss. 353, one Welsh was assaulted and robbed by the defendant in that case.

At the preliminary hearing for the charge of robbery, Welsh testified before the justice of the peace. After that trial, Welch died and at the succeeding term of the circuit court in that county, the defendant was indicted for murder, Welch died from the effect of the wounds, inflicted upon him at the time the robbery was committed On the trial of defendant for murder in the circuit court, the testimony of Welch delivered in the committing trial was introduced in evidence over the objection of defendant and this court held that the issue in the preliminary trial on the charge of robbery was not the same as the issue in the circuit court when the murder charged was investigated. Our court in that opinion takes special care *404to speak of the manifest caution and jealous care to preserve the constitutional guaranty that a defendant is entitled to be confronted by the witnesses against him. The court says:

“It must be perfectly clear that the issue, the offense charged, is substantially the same, so that the question asked to make out the one offense would be the same as those asked to make out the other, else the rule is not satisfied and the testimony is incompetent.”

It cannot be successfully contended in this case that the issue in the preliminary trial where defendant was charged with murder and the issue in the circuit court when he was simply charged with manslaughter are the same. Questions asked to make out a charges of manslaughter might not be sufficient to make out a charge for murder, and questions asked to make out a charge of murder might not avail to malte out a case of manslaughter.

I therefore respectfully submit that this testimony was .not competent and that the admission of.same, over defendant’s objection, was reversible error.

Fred Lotterhos, attorney-general, for the state.

At the threshold the appellant presents the proposition that even though he had performed an abortion and death resulted, that he cannot be convicted of any crime based thereon because he maintains that under the statutes of Mississippi it is not unlawful to cause an abortion prior to the time that the foetus becomes quickened, and that at common law, it was neither crime nor misdemeanor to accomplish or attempt an abortion prior to the time of' quickening, and that, accordingly he should not be held accountable for the death of the woman because the act charged to have been done by him was not unlawful. The correctness of this as a legal proposition is not conceded by the state. By statutes in Mississippi, “the willful killing of an unborn quick child, by an injury to the mother of the child, which would be murdered if *405it resulted in the death of the mother, shall be manslaughter (section 984, Hemingway’s Code) “and, every person who shall administer to any woman pregnant with a quick child any medicine, drug or other means, with intent thereby to destroy such child, and shall thereby destroy it, shall be guilty of manslaughter, unless the same shall have been advised by a physician to be necessary for such purpose (section 965, Hemingway’s Code).

From these quotations it appears that the legislature of Mississippi has made no provisions by way of condemnation of the causing of an abortion prior to the time of quickening; but, by section 1287 of Hemingway’s Code., it is. proAdded that “every offense not provided for by the statutes of this state shall be indictable as heretofore by common law,” and it is respectfully submitted that at common laAV it was a misdemeanor to cause an abortion prior to the time of quickening. If this be true, it follows that the death of Mary Miller, if caused by the act, procurement or culpable negligence of the appellant while he was engaged in the perpetration of a misdemeanor, or in the attempt to commit such crime or misdemeanor, Avas manslaughter (Hemingway’s Code, sec. 963; from the test of first Corpus Juris, pp. 312 and 313.) It appears that at common law it is a criminal offense to cause or procure an abortion and indicates that there is conflict of authority as to whether a common-law offense is committed by causing or procuring with the consent of the woman, an abortion before the quickening. It appears that in some jurisdictions it has been held that at common law it was a crime to procure an abortion on a pregnant woman, even with her consent and before the child had quickened, and sets forth as the conclusion of the textwriter that, according to the great Aveight of authority, it Avas not an indictable offense at common law to procure an abortion before the woman had become quick. The state submits that at common law it was a misdemeanor to bring about such a result before quickening, and respectfully directs the court’s attention in this regard to: State v. Reed, 45 Ark. *406334; State v. Slagle, 82 N. C. 653; State v. Slagle, 83 N. C. 630; Mills v. Commonwealth, 13 Pa. 634; Bishop’s Statutory Crime (3 Ed.), section 744, where it is stated that some have contended that if she consents., it is not indictable at common law unless she has arrived at a state of pregnancy termed “quick with child.”

Hale and Coke have used these terms but not in connections denying that an offense may be committed at an earlier stage of pregnancy. Others reject this distinction and approve the language of Justice Coulter, in Mills v. Commonwealth, cited above, where he, (Justice Coulter) says: “It is not the murder of a living child which constitutes the offense but the destruction of gestation .by wicked means and against nature. The moment the woman is instinct with embryo life and gestation has begun, the crime may be perpetrated.” Mr. Bishop says: “This in principle seems to, be the reasonable and just doctrine.” (Section 744, Bishop’s Statutory Crime, 3rd Edition). .Abortion is one of the leading offenses against population; therefore it is indictable at common law. See Bishop’s New Criminal Law, volume 1, section 509.

The basis of condemnation of such an action being that it is a wrong against population it is difficult to understand hoAv the courts at common law could have held that an abortion committed one day before quickening Avas innocent and a like act one day after quickening Avas criminal. It is persuasive ,of the vieAV that those courts in several states and the textAvriters who have held that abortion before or after quickening was a violation of the common law are correct in their reasoning. The Avrong at common law was not against the child but against society. Therefore, the distinction based upon the progress of the pregnancy is without the reason of the rule. See State v. Prude, 76 Miss. 544, and the authorities there cited. Mr. Wharton in the 3rd Edition of his Avork on Homicide, paragraph 592, says that at common law the attempt to ecect an abortion Avhether the child in útero was quick or *407not, and where that operation resulted in the death of the woman, ivas murder, or at least manslaughter.

If the charge here were that of having performed an abortion prior to quickening the solution of the question just discussed might be decisive of the matter. However, the charge here is of the slaying' of the woman, and while if this court shall hold that such an operation ivas violative of the common law, it will be decisive in favor of the state of this phase of the case, a contrary view (to the effect that there was no wrong against the child or society at common law) would not warrant the discharge of the appellant or a reversal herein for the reason that an operation of the kind and at the place detailed in the evidence Avas a Avrong against the woman; which, under the common hiAV, her consent could not warrant and therefore, death resulting, necessarily is a punishable manslaughter.

That the performance of an operation by a one and one-half inch laceration under the sanitary conditions of a negro house of ill repute, with the intention to permit the woman to there remain through the period of recovery, notwithstanding the availability of a suitable operation room, Avas an assault on the woman of so deliberate a nature and so necessarily attended with great danger to the person as to prevent the woman’s assent being taken as a laAvful excuse. Of this the court has judicial knowledge. It is a matter of common knowledge that an operation for abortion or a natural miscarriage presents a serious apprehension of blood poisoning. At page 1057 of Fifteenth Euling Case Law, we find that: “The court should take notice of Avhatever is or ought to be generally known, Avithin the limits of their jurisdiction, for justice does not require that courts profess to be more ignorant than the rest of mankind.”

This operation, which was performed for its manifest purpose, was so serious and deliberate an assault on the Avomau and threat againts her life that it becamé a wrong Avhich made its perpetrator under the common law and under our statutes responsible for all the results that *408might ensue, and it was an assault of that kind which assent has never condoned under the law. Hence this appellant was properly indicted for the death of the woman in view of its having resulted from his criminal action, even though he had no intent to kill the woman. See Hemingway’s Code, sections 963 and 1287-974.

From time immemorial abortion has been a crime and by the judicial law of Moses, if. mischief followed the act, it was punishable with death. Exodus, chapters 21-22-23. From Russell on Crime, volume 1, Ninth Edition, section 740, it appears: “When a person gave medicine to procure an abortion or put a skewer into the womb for the same purpose and the woman died, the case was held to be murder; for though the death of the woman was not intended, the cause was of a nature deliberate and malicious and necessarily attended with great danger to the person on whom they were practiced.”

' Involuntary manslaughter, according to the old writers, is where death results unintentionally so far as the defendant is concerned from an unlawful act on his part, not amounting to felony. Hence it is involuntary manslaughter where the death of another occurs through the defendant’s negligence use of dangerous agencies. 1 Wharton’s Criminal Law, Tenth Edition, sec. 305. In the same volume at section 323, it appears that manslaughter, includes all cases where killing takes place in the execution of an unlawful design not involving such deliberate and malicious intent to kill.

The same author at section 316 says: “We might class attempts to produce miscarriage resulting in the death of the mother (as manslaughter). Killing of this nature when incidental to great bodily harm to the mother, or death to the child, has been held murder at common law,” and at section 390 that: “If a pregnant woman be killed in an attempt to produce abortion in her, and it appears that the design of the operation was not to take the life of the mother, the offense has been held murder in the second degree. . . . This may be taken in all cases, *409where the intent was not to do the mother bodily harm. Where there is no such intent, the proper course is to indict separately for manslaughter of the woman and for the perpetration of abortion. “Here the nature of the act was such that the law Avill presume an intent to do great bodily harm, and that the woman could not laAvfully assent to the action.” “If the assault be of a nature injurious to the public as well as to the party assaulted, the reasoning that assent condones does not apply.” Mr. Wharton holds this to be the rule in section 636 of the same volume: “It is plain in principle and settled in legal authority as to offenses Avhich do not require a specific intent that Avhenever a man meaning one wrong does another unmeant, he is punishable. Bishop’s New Criminal Law, vol. 1, secs. 327-328.

Mr. Wharton in liis work "on Homicide, Second Edition, speaking of death resulting from an intent to produce a miscarriage says: “It is sufficient in order to sustain the ruling that killing the mother Avhen attempting to cause her to miscarry, is murder at common laAV. It rests on the fact that such attempt involves a serious bodily harm to the mother.” (Sections 41, 66, 192.) Then he says in section 318:

“A woman desires to miscarry of a child with Avhich she is pregnant, and- assents to an operation being performed on her for the purpose;’ and she dies from the operation, her assent, as Ave have already seen, is no defense to an indictment against the person performing the operation. If the intent Avas to kill or grievously injure her, the offense Avas murder; it is manslaughter if the intent was only to produce the miscarriage, the agency not being one from Avhich death or great injury would be likely to result.” See McLain’s Criminal LaAv, sec. 1147 and State v. Proctor, 102 Miss. 792, wherein the charge of manslaughter Avas sustained where death resulted from an attempt to commit an abortion prohibited by the statutes of Mississippi on that subject.

*410From the foregoing I submit that if the appellant performed, the operation shown by the evidence in this case, and death resulted therefrom, that he is subject to a conviction of manslaughter. The appellant complains that this conviction should not be sustained because the indictment was not according to the common law but was merely in the language of the statute, which position, as I see it, is not well taken, for the reason that the indictment does not purport to charge the commission of a crime or misdemeanor at common law, to-wit; an abortion, but charges the felonious killing of Mary Miller. “It was not necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it was sufficient to charge that the defendant did feloniously kill and slay the deceased.” (Hemingway’s Code, sec. 1187). See Bisop’s New Criminal Procedure, vol. 3, pp. 152G-7.

By virtue of section 1431, Code of 1906, in an indictment for homicide it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder that the defendant did feloniously, wilfully and of his ¡malice aforethought, kill' and murder the deceased. And it shall be sufficient in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.

Thus we find that the legislature, for the sake of simplicity, has seen fit to nominate the essentials of an indictment, charging a felonious homicide. We respectfully submit that an indictment charging in the language of section 1431 is sufficient to sustain a conviction of manslaughter iipon any of those cases of felonious homicide which were manslaughter at common law, and are now made manslaughter by the statute.

Under this statute we charge murder, and convict of it, on proof that the killing of the human being, without the authority of law, by any means, or in any manner, was done with deliberate design to effect the death of the person killed, or of any human being; done in the com*411mission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual; done ivithout any design to effect death, by any person engaged in the commission of the crime of . . . or in the attempt to commit such felony.” Code 1906, section 1227. Or we charge murder or manslaughter in 'the language of the statute (section 1431, Code 1906), and convict of manslaughter on proof that the felonious killing was . . . without malice .... Code of 1906, section 1236, unnecessary while resisting effort of slain person to commit a felony, Code 1906, section 1237, with a dangerous weapon in heat of passion. Code 1906, section 1238. The killing of a human being by the act, procurement or culpable negligence of the accused, and without authority of law, (not otherwise provided for by statute). Code of 1906, section 1244.

Here we have a conviction of homicide without malice, not excused or justified, in the judgment of the jury, which may he sustained without the inclusion of the element of intention to kill the person specifically charged to have been killed, and who was killed, and we do not return to the prolixity, profundity and difficulties of common-law pleading which situation the legislature sought to modify and relieve. This the court would not do, except the section be obnoxious to the constitution or some right given in natural justice. That the statute is not unconstitutional, see Netoconib v. State, 37'Miss. 383, and 22 Cyc., 285 and 286, where the text' reads:

“Where a particular offense, such as homicide, is divided into degrees which are defined by statute, the indictment may follow the general form without specifying the elements which fix the particular degree, and still fulfil the requirements of informing defendants of the nature and cause of the accusation.”

No hardship is worked on the defendant by the application of our statute and this rule, for the reason that the *412defendant may have a bill of particulars, if he be not sufficiently informed of the crime charged to enable him to prepare for defense. That a bill of particulars may be had in a proper case may be found in Starling v. State, 43 So. 952.

Conviction or acquittal under the indictment herein furnishes the unquestionable support for a plea of former jeopardy, upon any subsequent endeavor to prosecute the appellant for the killing of Mary Miller. Having- submitted in brief what we conceive to be the correct reasoning of this question, we submit as decisive the( opinion of this court in Re Washington v. State, 24 So. 309; State v. Peek, 48 So. 819; Lems v. State, No. 21164, 84 So. 146.

It is assigned that it was error to admit evidence on this trial for manslaughter of the testimony of E. IT. Strong, deceased, who testified at the preliminary investigation where this appellant was charged with this homicide as a murderer. As I see it, this evidence was properly admitted, the exact language of the deceased was shown, the preliminary was for this particular homicide and the charge was murder which was substantially the same as this charge of manslaughter, and being of a higher grade, removed the reason for the rule which precludes the introduction of such evidence where the charges at the first and second trial are different. When answering to the charge of murder the defendant would be more likely to propound the most exhaustive inquiries on a cross-examination. It is conceivable that after a first trial on a charge of assault and battery that it might be said on the succeeding trial for manslaughter or murder that although the investigation was of the same homicide that the testimony should not be admitted because the defendant would not have been so thorough in his cross-examination where the charge was a minor one and where elements that must exist to sustain the higher charge were not involved. Hoavever, it has been held that in a case such as that just imagined that the testimony given at the assault and battery *413trial could be introduced after the death of the witness in a trial for murder.

Dukes v. State, cited by the appellant, presented a state of facts quite different. There the testimony sought to be introduced because of the death of the witness in the homicide case had been detailed by the witness in a trial predicated of the charge of robbery. The rule in Mississippi is clear and is consistent with the common-law doctrine. See 0teens v. State, 63 Miss. 450; IApseomb v. State, 76 Miss. 254; Dukes v. State, 80 Miss. 359; Etolifield v. Laurel, 50 So. 488, 96 Miss. 59.

The Lipscomb case makes clear the admissibility of the evidence herein complained of.