Roeder v. State

Morton, J., delivered the opinion of the Court. The appellant, Maxine Roeder, was tried in the Criminal Court of Baltimore by Judge Anselm Sodaro, sitting without ⁷⁰⁷ a jury, and was convicted of using unlawful means to cause and procure a miscarriage and abortion. Appellant’s sole contention raised on this appeal is that the trial court erred in finding guilt absent proof of an essential element in the indictment. The evidence adduced at the trial revealed that the prosecuting witness believed herself pregnant when “1 had skipped my period and I was sick in the morning and my body was swollen.” As a result thereof, she visited a local bar and contacted another girl who, in turn, led her to the appellant.

Subsequent thereto, the appellant and prosecuting witness met at the contact’s apartment where the appellant directed her to remove her clothing and to lie on the bed. Asking if she would get sick, the prosecuting witness was assured that she would be “all right.” The appellant then placed clamps upon and inserted' tubes into the prosecuting witness’ vagina, thereafter inserting a cold liquid. The process took some fifteen minutes. A small amount of blood was passed and she was told to “[g]o home; you’ll be all right.” Three hundred dollars was paid for the service the appellant rendered.

Two days later, the prosecuting witness aborted and started to hemorrhage, which continued for five days. Two days after aborting and the start of the hemorrhaging, she was admitted to the Greater Baltimore Medical Center. The thrust of the appellant’s argument is that the State failed to prove that the prosecuting witness was pregnant “beyond the reasonable doubt and to a moral certainty,” at the time of the alleged crime, and absent this prerequisite element of proof, the conviction cannot stand. As was so lucidly expressed by Chief Judge Alvey in his dissenting opinion in Lamb v. State, 67 Md. 524 at 537 (1887), quoting from Mills v. Commonwealth, 13 Pa.

St. 631, 633: “It is a flagrant crime, at common law, to attempt to procure the miscarriage or abortion of a woman, because it interferes with and violates the mysteries of nature, in that process by which the human race is propagated and continued. It is a crime against nature, which obstructs the fountain of life, and therefore it is punished.” ⁷⁰⁸ The original precursor of the controlling statute was initially construed in Lamb v. State, supra. That opinion by Judge Bryan observed in effect that the statute of 1868 by proscribing the enumerated activities at any period of her pregnancy changed the common law concept that since “the life of an infant was not supposed to begin until it stirred in the mother’s womb, it was not regarded as a criminal offense to commit abortion in the early stages of pregnancy.” Except for very minor variance, the statute of 1868 is the same as the instant statute. Article 27, § 3 of the Annotated Code of Maryland (1967 Repl.

Vol.) states that: “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 * * *” [Emphasis added]. As stated in 1 Maryland Law Encyclopedia at page 29 : “* * * ‘abortion’ commonly describes an offense, carrying a meaning well established in jurisprudence. ⁷⁰⁹ By the use of the word is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb, or that a premature birth thereof be caused before it is capable of sustaining life.” The nature of the activity legally proscribed by the aforenoted statute is clearly any specified effort knowingly directed at the causation or procurement of a miscarriage or abortion of any woman, pregnant with child at any period of her pregnancy, excluding that legally condoned exercise by a medical practitioner. The element of pregnancy is requisite to the