Worthington v. State

Pearce, J., delivered the opinion of the Court: The defendant was indicted in the Criminal Court of Baltimore for manslaughter in causihg the death of Amelia A. Miller through an abortion performed on her by him. He demurred to the indictment, and the demurrer being overruled he was convicted and was sentenced to the penitentiary for ten years. Nine bills of exception were taken to the admissibility of evidence, and the questions thus presented, together with the demurrer, are now before us for determination. As the demurrer raises a question of novelty and of some importance in criminal pleading and practice we shall request the Reporter to set out the indictment in full.

The appeal has been ably argued on both sides, and the experienced and distinguished counsel of the defendant addressed a very earnest appeal to us for the correction of the grave errors which he contends were made in the rulings upon the demurrer and upon the evidence, and we have responded in a careful and patient search for any error which would require or would justify a reversal of the judgment. The proposition upon which the demurrer is based, is, that the death of a woman resulting from a criminal abortion upon her, is, at common law, murder, and the indictment, if it can at all be regarded as an indictment for homicide, is defective, because it charges death as the result of the abortion, but charges the defendant with the crime of manslaughter instead of murder. It is contended that this defect is obviolis, from the fact that murder and manslaughter are different crimes and not different degrees of the .same crime, and the further fact that there is no statute in this State reducing the character of the crime — when the death of the mother is caused by a criminal abortion — from murder to manslaughter. ²³⁶ The principal reliance for this contention is the case of State v. Moore, 25 Iowa, 137 , in which the opinion of the Court was delivered by Judge Dillon. The defendant was indicted for murder in the second degree by abortion.

The defendant demurred to the indictment on the ground that the offense charged was not murder, because it-had been held in Iowa that no act, though indictable at common law, could be punished as a crime unless the act was declared criminal by statute, and it was argued that asi the statute defining and punishing murder was passed in 1851, and the statute making the procuring of an abortion unlawful was not passed until 1858, that the latter act, which says nothing about murder, could not make that murder which was not so before. The same question was also raised by a request to the Court to instruct the jury that they might convict of manslaughter, which instruction was refused. The Court held, and as we think properly, that the Act of 1851 being unrepealed, continued to speak in 1858, and had the same force and effect as if it had been passed concurrently with, or subsequent to, to the Act of 1858, and therefore overruled the demurrer. But the question still remained whether, under that indictment, a conviction for manslaughter could be had.

Upon that question, the Court cited the passage from Lord Hale, 1 P. C. 429, 430, relied on here, as follows: “If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder ; for it was not to cure her of a disease, but unlawfully to destroy the child within her; and therefore he that gives a potion to this end, must take the hazzard, and if it kills the mother it is murder.” Thé Court also cited to the same effect Commonwealth v. Parker, 9 Metc. 263, per Shaw, C. J., and in disposing of the demurrer, said: “The crime we have seen was at common law murder, and under our statute is murder in the second degree. Under the charge, and under the evidence, the defendant was guilty of murder in the second degree or of nothing, and hence the Court did not err in refusing to say to the jury that they might convict the defen ²³⁷ dant of manslaughter.” Too great respect cannot be paid to the opinions of these eminent judges, but it is obvious that there must be some limitations to the doctrine thus alleged to be laid down by Lord Hale, and we are unwilling to adopt it as a hard and fast rule, even though fortified by Judge Shaw and Judge Díllon ; and, as the State’s Attorney has pointed out, a careful examination of the chapter from which the above citation was taken, will show that the word murder was not necessarily used in its technical sense, but as equivalent to homicide, embracing both murder and manslaughter. But whatever may have been the severity of the earlier common law, the proposition is too broadly stated that death resulting from criminal abortion has always been murder at common law. The crime of abortion is a misdemeanor only at common law and our statute, while broadening the scope of the common law, and increasing the punishment, still leaves the crime a misdemeanor.

For this reason, as stated in Clark's Criminal Law, p. 161, “causing the mother’s death in attempting an abortion, is only manslaughter at common law, if the attempt is not made in a way that endangers the mother’s life. In the latter case it is murder.” It is only in jurisdictions where abortion is raised by statute to the grade of felbny that causing the death of the mother is necessarily murder. Idem., p. 191, 174. Mr. Wharton says in his Criminal Law, sec. 325, that where there is no. intent to kill or to inflict grievóus injury, and no likelihood of such result, the offense is but manslaughter; and in sec. 318 of his work on Homicide, he says, “whether the offense is murder or manslaughter depends largely on the intent as appearing on the whole case.

If the intent was to kill or grievously injure her the offense is murder. It is manslaughter if the intent was only to produce the miscarriage, the agency not being one from which death or grievous injury would be likely to result.” It is common knowledge that death is- not now the usual, nor indeed the always probable consequence of an abortion. The death of the mother doubtless more -frequently resulted in the days of rude surgery, when the character and proper ²³⁸ ties .of powerful drugs were but little known, and the control over their application more limited. But in these days of advanced surgery and marvelous medical science and skill, operations are performed, and powerful drugs administered, by skillful and careful men without danger to the life of the patient.

Indeed, it is this comparative immunity from danger to the woman which has doubtless led to the great increase of the crime to the establishment of a class of educated professional abortionists, and to the enactment of the severe statutes almost everywhere found to prevent and punish this offense. The woman takes her life in her hands when she submits to an abortion, be she wife or maid, but her death is no' necessary element in the procuring of an abortion, and the applica- ■ tion of the harsh rule here contended for would have no effect in the repression of that abhorrent crime, which can only be efficiently dealt with by severity in the enactment and administration of the law punishing the attempt upon the life of the unborn child. In the late case of Peoples v. Commonwealth, 87 Ky. 492 , the law upon this subject is well reviewed, and the doctrine announced in Clark and Wharton, as we have stated it, is approved and adopted. In Regina v. Gaylor, 7 Cox’s Criminal Cases, 253, decided in 1857, the indictment was for manslaughter by abortion, and the prisoner was convicted.

The evidence showed that the prisoner was clearly guilty of being accessory before the fact to the woman taking the drug with intent to'procure an abortion, and the Judge reserved the case for the opinion of the Court of Criminal Appeal. It was heard before Pollock, C. B., Bramwell and Watson, BB.,and Erle and Willes JJ. Erle, J.-, before whom the case was tried, said : “This would, in my opinion, be murder if she died in consequence of taking that drug. But the grand jury found that it was manslaughter.

If a man is indicted for manslaughter,’and it turns out to be murder, he may be found guilty of manslaughter. In this case I thought he was guilty of murder by administering the drug, and might therefore be convicted of manslaughter.” ²³⁹ The Judges affirmed the conviction, but without giving their reasons for doing so. If the present indictment had been for murder, as it is contended it should have been, there can be no doubt a conviction of manslaughter would have been good; State v. Flannigan, 6 Md. 167; State v. Davis, 39 Md. 355 ; so that the defendant is in the singular position of complaining of an indictment because it does not subject him to conviction for a graver offense than that with which he is charged. But Mr. Wharton says, in sec. 390 of his Criminal Law, “Where there is no intent either to take the life of the mother, or to do her grievous bodily injury, the proper course is to indict separately for the manslaughter of the mother and for the perpetration of the abortion.” Courts in this State constantly instruct grand juries that they ought not to indict, if, upon the evidence produced by the State, they would not convict if sitting as petit jurors, and for the same reason, if, upon the evidence of the State, they would not convict of the higher offense if sitting as petit jurors, they Avould be justified, with the advice of the State’s attorney, in refusing to subject the accused to the danger of conviction upon a charge of which the accusing body would not, upon that evidence, convict him.

See Yundt v. People, 65 Ill. 372 . We can discover no defect in this indictment which a demurrer could reach, and we think there was no error in overruling it. The defendant also contends that the indictment does not ■charge any form of homicide, but is for the statutory offense •of abortion, and that for this reason no dying declaration can "be received. But this contention cannot be sustained.

It is certain that dying declarations can only be received where the •death of the ^deceased ¡s the subject of the charge and