182 Wis. 298 | Wis. | 1923
We shall not devote any time to the discussion or recital of the evidence further than to say that it sustains a finding that Miss Jung was pregnant; that the defendant performed a criminal operation upon her by means of which the embryo or foetus was prematurely expelled; and that there were no prejudicial errors in the trial of the case.
The really serious question in the case is whether the defendant was prosecuted under the proper section of the statute. Sec. 4352, under which he was prosecuted, reads as follows:
“Any person who shall administer to any woman pregnant with a child any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.”
Sec. 4583 reads as follows:
“Any person who shall administer to any pregnant woman, or prescribe for such woman, or advise or procure any such woman to take any medicine, drug or substance or thing whatever, or shall use or employ any instrument or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman shall be punished by imprisonment in the county jail not more than one year nor less than six months or by fine not exceeding five hundred dollars nor less than two hundred and fifty dollars, or by both such fine and imprisonment in the discretion of the court.”
It is found in the chapter entitled “Offenses against Chastity, Morality, and Decency.” It is evident that the legislature did not intend to define the same offense in the two sections. In the latter it defines the offense of an act intended to produce miscarriage or one that does produce miscarriage. Rodermund v. State, 167 Wis. 577, 168 N. W. 390. In order to commit such an offense there must be a pregnant woman. A normal pregnancy can exist only where there is embryonic life in the womb of the pregnant woman; therefore, in order to commit the offense of producing a miscarriage, there must be a destruction and expulsion of embryonic life. So we have a statute covering the offense of destroying and expelling from the womb embryonic life. This offense is one not -against a person because the law does not recognize a mere embryo as a person or human being, but is an offense against morality because it is against good morals to destroy that which otherwise presumably would develop into a human being. It interferes with the normal functions of nature in the perpetuation of the race.
The offense described in sec. 4352 constitutes manslaughter in the second degree and is by statute included under the denomination of “homicide,” which means the killing
In State v. Dickinson, 41 Wis. 299, the court had before it a case where the death of the pregnant mother was produced, and the statement that “it is not material whether the pregnant woman be quick with child or not,” was correct under the facts there existing.' Some authorities hold that a woman is quick with child from the time of conception but does not carry a quick child until it has stirred in the mother’s womb. For a case seeming to hold a contrary view to that held in this case see State v. Atwood, 54 Oreg. 526, 102 Pac. 295, 104 Pac. 195.
' In a strictly scientific and physiological sense there is life
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.