Larkins v. State

Offutt, J., delivered the opinion of the Court. The appellant in this case was indicted, tried, convicted, and sentenced in the Crminal Court of Baltimore City for an alleged violation of Code, art. 27, sec. 3. The single question presented by this appeal, which was taken from the judgment in that case, is whether the seventh and eighth counts of the indictment describe an offense indictable under that statute. The indictment contained twelve counts and was returned against the appellant and two other defendants.

One of those defendants pleaded guilty, the appellant demurred to the indictment and each count thereof, but the record does not disclose the disposition of the case against the third defendant. The appellant’s demurrer was overruled, the case against him went to trial, and at the conclusion of the trial he was found guilty under the seventh and eighth counts and not guilty under the others. The seventh count charged that the defendant “unlawfully and knowingly did furnish a certain Xina Kelly who was then and there a woman pregnant with child, with advice, information, direction and knowledge for the purpose of causing a miscarriage and abortion of her the said Xina Kelly so being then and there pregnant with child as aforesaid, during the period of her pregnancy.” The eighth count- charged that they “unlawfully did furnish a certain Xina Kelly who was then and there a woman pregnant with child, with advice, information, direction and knowledge as to where advice, information, direction and knowledge might be obtained by her the said Xina Kelly for ³⁷⁴ the purpose of causing a miscarriage and abortion of her the said Nina Kelly so being then and there pregnant with child as aforesaid, during the period of her pregnancy.” So much of the statute as is relevant to the immediate inquiry reads as follows: “Any person who shall knowingly advertise, print, publish, distribute or circulate, or knowingly cause to be advertised, printed, published, distributed or circulated, any pamphlet, printed paper, book, newspaper notice, advertisement or reference containing words or language giving or .conveying any notice, hint or reference to any person, or to the name of any person, real or fictitious, from whom, or to any place, house, shop or office, where any poison, drug, mixture, preparation, medicine or noxious thing, or any instrument or means whatever, for the purpose of producing abortion, can be procured, or who shall knowingly sell, or cause to be sold any such poison, drug, mixture, preparation, medicine or noxious thing, or instrument of any kind whatever; or from whom any advice, direction, information or knowledge may be obtained for the purpose of causing the miscarriage or abortion of any woman pregnant with child, at any period of her pregnancy, or shall knowingly sell or cause to be sold any medicine, or who shall knowingly use or cause to be used any means whatsoever for that purpose, shall be punished by imprisonment in the penitentiary for not less than three years, or by a fine of not less than five hundred dollars nor more than one thousand dollars, or by both, in the discretion of the court.” It appears from a comparison of the two counts of the indictment with the statute that they rest upon the language of that part of it which declares that “any person * *. * from whom any advice, direction, information or knowledge may be obtained for the purpose of causing the miscarriage or abortion of any woman pregnant with child * * *” shall be punished, etc., as though the words “from whom any advice * * * may be obtained” are immediately referable and relate to the words “any person” at the beginning of the section. If they are so referable, that clause, completed by the addition of the words “any person,” would read “any person ³⁷⁵ from whom any advice, direction * * * may be obtained for the purpose of procuring the miscarriage or abortion of any woman * * * shall be punished,” etc. But appellant contends that they are not so referable, and that that clause does not make the act of furnishing oral information, etc., even though furnished for the purpose of procuring an abortion, a criminal offense.

It may be conceded that the literary structure of the section is ungrammatical, that it is not properly punctuated, that the collocation of sentences is awkward, and that those defects obscure its meaning. Nevertheless, if the intent of the Legislature is manifest in the statute, it should be construed so as to effect that intent, rather than to defeat it, where such a construction is not inconsistent with its actual words. To reach that end, errors in grammar and punctuation occurring in the statute may be disregarded. Dunn v. Brager, 116 Md. 242, 250 , 81 A. 516 ; O’Brien v. State, 126 Md. 273 , 94 A. 1034 .

And as stated in 25 R. C. L. 966: “The application of the general rule that the intention of the legislature is to be determined from the language of the statute is not to be affected by the fact that the phraseology may be awkward, slovenly or inartificial. Language which has a distinct meaning, however awkward and inept, must be held to express the legislative will, and the facility with which the legislature might have expressed itself more appropriately or more directly will not authorize a court to disregard the natural sense of the words actually used.” Returning to the statute, it is apparent from its language that in its adoption the general intent of the Legislature was to stigmatize, define, and punish as crimes acts done for the purpose of procuring abortions or which with that end in view made accessible knowledge, instrumentalities, or means by which an abortion might be procured. To effect that intent the statute sought to prevent (1) by the dissemination of written or printed matter, of information as to the places where, or the persons from whom, instrumentalities or information for procuring an abortion might be obtained, ³⁷⁶ (2) the sale of instrumentalities or. means, and (3) the use of instrumentalities or means, for that purpose. But the seventh and eighth counts of the indictment are based upon the theory that the statute goes beyond that and includes within its denunciation information, advice, knowledge, or direction furnished orally as to where information, advice, knowledge, or direction may be procured for the purpose of procuring an abortion.

And if the third clause of the statute can be construed as a separate classification of the offenses which the statute defines, those counts are good. But while that clause is the third in sequence, its apparent purpose was not to define a separate and distinct offense, but to extend the scope of the definition contained in the first clause, so as to include notice by written or printed matter not only of persons from whom instrumentalities or means for procuring an abortion might be obtained, but also the names of persons from whom, or places where, information, knowledge, direction, or advice for the purpose of procuring an abortion might be obtained. And in that connection it is significant that, in each of the other four offenses defined by the statute, scienter is a necessary ingredient, while if the third clause is to be regarded as creating a separate and independent offense, it is entirely consistent with its language that one from whom advice “may be obtained” for the purpose of procuring an abortion may be guilty of that offense although he did not know for what purpose the information or advice was to be used. So that if an abortioner, for his own evil purposes, in order to facilitate his unlawful and revolting trade, were to' obtain from a reputable physician or scientist information “for the purpose of procuring an abortion,” the physician or scientist would under the statute be guilty of the offense thus defined even though he may have had no knowledge of the use to be made of the information which he furnished.

And then the use of the word “or” in connection with “from” in beginning the third clause, while following naturally and properly the comma at the end of the first clause, cannot be logically connected with the words “any person” at the beginning of the whole section. ³⁷⁷ Again, if the third clause is taken