Lamb v. State

67 Md. 524 | Md. | 1887

Lead Opinion

Bryan, J.,

delivered the opinion of the Court..

The indictment against the traverser contained two counts. In the first it was charged that he attempted to commit an abortion on the body of one Rachel A. Taylor, who was a pregnant woman, and that the overt act towards the commission of the offence' was the supplying and delivering to the said Rachel, a large quantity of noxious and poisonous drugs and preparations for the purpose of causing the said abortion. The second count charged that the traverser did advise, solicit and incite the pregnant woman to take and swallow a large quantity of noxious and poisonous drugs and preparations for the purpose of causing an abortion. The traverser demurred to both counts of the indictment. The demurrers being overruled, he was put on his trial and acquitted on the first count, but convicted on the second. He was sentenced to imprisonment for two years in the House of Correction.

The traverser was not regarded by the Court below as having incurred the penalties prescribed by the statute of 1868. These are imprisonment in the penitentiary for a term not less than three years, or fine ; or by both fine and such imprisonment. This statute made great changes in the pre-existing law. It made it highly penal to give notice by advertisement, printing or publication of any place where any means could be procured for the purpose of producing abortion, or where any advice, direction, information or knowledge could be obtained for the purpose - of causing the miscarriage or abortion of any pregnant woman, at any period of her pregnancy ; and it also prescribed punishment for every person who should sell, or cause to be sold, any medicine for this purpose, or who should knowingly use, or cause to be used, any means whatsoever for the same. It excepted from its provisions certain operations by regular medical practitioners. By the ancient common law, according to Lord Coke, “if a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder.” But as 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 offence to commit an abortion in the early stages of pregnancy. A considerable change in the law has taken place in many jurisdictions by the silent and steady progress of judicial opinion ; and it has been frequently held by Courts of high character that abortion is a crime at common law without regard to the stage of gestation. In this State, however, the change has been effected by the action of the Legislature, and not by the decisions of the Courts. The offences to be punished are defined with great minuteness and particularity, and the scope of criminality in matters of this description is greatly enlarged. But the acts charged upon the traverser in the second count are not comprehended in the terms of the statute. The charge is that the traverser solicited a pregnant woman to take certain drugs for the purpose of causing an abortion. It is not stated that she took the drugs. The act is germane to those prohibited by the statute. It is an effort by solicitation to cause means to be used for a guilty purpose. It may be urged that a solicitation is an attempt, and that an attempt to commit a misdemeanor is a misdemeanor. Pursuing the same train of inference and reasoning, we may go a step further, and maintain that as the solicitation is a misdemeanor, an attempt at solicitation would, by the same rule, be also a misdemeanor. This process might be indefinitely extended, so as to reach persons very remotely separated from the act which the statute intended to punish. Certainly it would be a great public calamity to invent crimes by subtle, ingenious and astute deduction. In all free countries the criminal law ought to be plain, perspicuous and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only bythe application of artificial principles according to a mode of disquisition unknown in the ordinary business and pursuits of life. The Legislature, with ample power over the whole subject, determined what offences should be punished. If it had desired that other actions of a cognate character should become penal, it would have so enacted. It is the duty of the Courts to interpret and administer the legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it. It has frequently been stated that an attempt to commit a misdemeanor, is, by the common law, a misdemeanor. There are undoubtedly many instances in which this is true. But it cannot be maintained as a universal principle. The law has declared that an attempt to commit a felony, or a persuasion of another person to commit a felony, is a misdemeanor. And it has declared many actions to be misdemeanors where the purpose of the offender was not consummated, although if consummated, it would have been only an offence of this grade.' Acts of this description are well defined and their character well understood. There must be an unlawful purpose, and an act committed which would carry it into immediate execution, unless it were prevented by some counteracting force or circumstance which intervenes at the time. We may see an illustration of this doctrine in cases of assault and battery. A battery is defined to be the unlawful beating of another ; and an assault is an attempt to beat another without touching him. But it is held that a purpose to commit violence on the person of arfbther, if not accompanied by an effort to carry it into immediate execution, falls short of an assault; and that where ah unequivocal purpose of violence is accompanied hy any act, which, if not stopped, or diverted, will he followed by personal injury, the attempt is complete. State vs. Davis, 1 Iredell, (N. C.) Repts., 125. The law would not be a practical system if it did not define with precision the nature and circumstances of the attempts which are criminal, and determine what acts are necessary to make the attempt a substantive offence. In our judgment it has done so, and not left us to grope after results under the guidance of vague general expressions.

(Decided 23d June, 1887.)

The act described in the second count is extremely immoral and very, offensive to the sensibilities of all virtuous people, hut we have no power to make a law for its punishment. The demurrer to the second count ought to have been sustained, and. as the traverser was acquitted on the first count, he ought to have been discharged.

Judgment reversed.

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Dissenting Opinion

Alvby, O. J.,

filed the following dissenting opinion, which was concurred in by Judge Irvin©:

I am so unfortunate in this case as to be unable to agree with the majority of the Court in the opinion that has been filed, reversing the judgment of the Court below. According to my opinion, that judgment ought to he affirmed.

The indictment contains two counts. The first charged the defendant with an attempt to commit an abortion upon Rachel A. Taylor, then and there being pregnant with child, and to accomplish such object, used and employed certain means described.

The second count charged that the defendant did “unlawfully and wickedly advise, solicit and incite Rachel A. Taylor, then amd there being a pregnant woman, to take and swallow a large quantity of a certain substance, medicine, and noxious and poisonous drugs and preparations, to the jurors unknown, for the purpose of causing the miscarriage and abortion of her, the said Rachel A. Taylor, then and there pregnant with child as aforesaid, and thereby to commit the crime of abortion.”

To each of these counts a demurrer was entered, and which was overruled by the Court. The defendant then pleaded to the indictment, and upon trial he was acquitted of the charge in the first count, hut was convicted on the second count, and was duly sentenced. The case is here upon assignment of error, in overruling the demurrer to-the second count of the indictment; and the general question is, whether the facts charged in that count, and admitted by the demurrer, constitute an offence punishable by law.

By the statute law óf this State, (Act 1868, ch. 11(9,. sec. 2,) it is made unlawful and a criminal offence for any one, by any sort of publication, to indicate the means, or the person or place from whom or where the means may he procured, for producing abortion, or to give any kind of direction “from whom any advice, direction, information or knowledge may he obtained for the purpose of causing the miscarriage or abortion of any woman pregnant with child, at any period of her pregnancy,” or knowingly to sell, or cause to he sold, any medicine, or knowingly to-use, or cause to he used, any means whatsoever for that purpose, that is, to cause miscarriage or abortion as aforesaid, and any person so offending is made liable to punishment 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 is very clear, if the defendant had administered the noxious drug for the purpose of producing abortion, or if lie had caused the girl to take the drug for that purpose, he would have been guilty of the statutory misdemeanor ; and that, too, wholly irrespective of the effeet produced upon the woman. He would have used, or caused to be used, means for the purpose of producing abortion, and whether such means were sufficient to produce the desired effect or not, the crime would have been fully embraced within the terms of the statute. But the defendant is only charged with unlawfully and wickedly advising, soliciting and inciting the woman to take and swallow a large quantity of noxious drugs, for the purpose of producing abortion; and the question is, whether this, in view of the statutory misdemeanor, is a crime at the common law, as for an attempt to commit a misdemeanor ? And in my opinion it clearly is.

Even at common law, an attempt to produce an abortion is held to be a misdemeanor, and it is not necessary, as it seems to have been at one time supposed, to aver in the indictment that the woman was quick with child ; but to aver that she was pregnant with child is quite sufficient. 3 Chitt. Cr. Law, 798; 1 Russ. on Cr., 553, (2nd Ed.); 2. Whart. Cr. Law, secs. 1220-1223, (7th Ed.), Mills vs. Comm., 13 Pa., 631, 633. As was said by the Supreme Court of Pennsylvania, in the case just referred to, “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.”

Here the statute has declared, that knowingly to use, or cause to be used, any means whatsoever for the purpose of producing a miscarriage or abortion, at any stage of the woman’s pregnancy, shall constitute a substantive offence, which is a misdemeanor ; and the established general principle is, that an attempt to commit a misdemeanor is a misdemeanor itself. Reg. vs. Ransford, 13 Cox C. C., 9. -4nd so an attempt to commit a misdemeanor created by statute is a misdemeanor. Rex vs. Butler, 6 C. & P., 368. In the case of Rex vs. Roderick, 7 C. & P., 795, where the traverser was indicted for attempting to know a child under twelve years of age, Parke, B., said : “If this offence is made a misdemeanor by statute, it is made so for all purposes. There are many cases in which an attempt to commit a misdemeanor has been held to be a misdemeanor ; and an attempt to commit a misdemeanor is a misdemeanor, whether the offence is created by statute, or was an offence at common law.” This is clearly the general principle; but it is not of universal application. It does not apply in that class of cases made criminal merely to prevent the evasion of the revenue laws, or to secure the observance of mere police regulation, and the like, where the acts made criminal are not mala in se, but simply mala quia prohibita.

In a text book of high authority it is laid down as among the established principles of the criminal law, that the attempt to commit a crime, though the crime be but a misdemeanor, is itself a misdemeanor. But that to constitute such an attempt, there must be an intent that the crime should be committed by some one, and an act done pursuant to that intent. And as instances or examples of the application of the principle, the author gives those found in the books where indictments have been sustained against parties for advising and inciting another to steal; for persuading or soliciting a public officer to receive a bribe ;■ and for soliciting another to commit adultery. 3 Greenl. Ev., sec. 2. And in 1 Bishop on Criminal Law, sec. 767, it is laid down as established doctrine, that “soliciting another to commit a crime is a common form of attempt, the act which is a necessary ingredient in every offence, consisting in the solicitation. A solicitation does not stand so near- the substantive offence intended as some other forms of attempt. It appears, properly viewed, to be the first of a series of steps toward the execution.” And it seems to be settled that an indictment is sufficient which simply charges that the defendant, át the time and place mentioned, unlawfully and wickedly did solicit and incite the person named to commit the substantive offence, without any further specification of overt acts. 1 Bish. Cr. Law, sec. 768 c.

There are many precedents and express decisions that sustain the principles just stated from the text books. In the case of Rex vs. Vaughan, 4 Burr., 2494, the charge was for an attempt to corrupt the Duke of Grafton, a member of tbe Privy Council, by solicitation to induce him for a bribe to procure an office for the applicant. Lord Mansfield, with the concurrence of the other Judges, said that he was clear that the offence charged was a misdemeanor, and punishable as such. And in the course of his judgment his Lordship said : “If a party offers a bribe to a Judge, meaning to corrupt him in a case depending before him; and the Judge taketh it not; yet this is an offence punishable by law, in thes party that offers it. 3 Inst., 147. So, also, a promise of money to a corporator to vote for'a mayor of a corporation : as in Rex vs. Plympton, 2 Ld. Raym., 1377. And so also must be an offer to bribe a Privy Counsellor, to advise the King.” And in the case of Rex vs. Phillips, 6 East, 464, it was held, upon full argument and examination of authorities, that an endeavor to provoke or incite another to commit the misdemeanor of sending a challenge to fight a duel is itself a misdemeanor, and therefore indictable at common law. And so to attempt to suborn one to commit perjury, or to solicit and persuade a witness to absent himself from a public prosecution when summoned as a witness, or to solicit a party to commit adultery, or any other misdemeanor, of an evil and vicious nature, are indictable offences, and punishable at the common law. Rex vs. Lawly, Fitzg., 263; State vs. Keyes, 8 Vt., 57; State vs. Carpenter, 20 Vt, 9; State vs. Avery, 7 Conn., 267; Comm. vs. Harrington, 3 Pick., 26.

The leading case upon the subject is that of Rex vs. Higgins, 2 East, 5. In that case the traverser was indicted for soliciting and inciting a servant to steal his master’s goods; and it was held, upon full consideration, that it was a punishable misdemeanor for any one to solicit another to steal, and this, though it he not charged in the indictment that the party solicited stole the goods, or that any other act was done more than the simple acts of soliciting and inciting by the traverser. There, in answer to the argument, that a mere intent to commit evil was not indictable, without an act done, Lord Ch. Justice Kenyon replied: “But is there not an act done, when it is charged that the defendant solicited another to commit a felony ? The solicitation is an act; and the answer given at the bar is decisive, that it would be sufficient to constitute an overt act of high treason.” Mr. Justice Gbose, after referring to the cases upon the subject, said: “All these cases prove, that inciting another' to commit a misdemeanor is itself a misdemeanor ; a fortiori, therefore, it must he such to incite another to commit felony.” And. Mr. Justice Lawrence said: “The whole argument for the defendant turns upon a fallacy in assuming that no act is charged to have been done by him ; for a solicitation is an act. The offence does not rest in mere intention ; for in soliciting ,Dixon to commit the felony, the defendant did an act towards carrying his intention into execution. It is an endeavor or attempt to commit a crime.” And the principle of that case was fully adopted and applied in the recent case of Reg. vs. Ransford, 13 Cox C. C., 9, by the Court of Criminal Appeal in England ; and the attempted distinction made here, between the cases of felony and misdemeanor, was, in that case, utterly ignored, as being without foundation.

Here, taking the averments of the indictment to be true, as admitted by the demurrer, the defendant, by the solicitation and incitement as charged, did all that he could well do towards committing the substantive offence created' by the statute ; for if the woman had yielded to his solicitation and taken the drugs for the purpose charged, the defendant would have been guilty of the offence denounced by the statute. __ But the fact that the woman did not yield to the solicitation and comply with the prescription of the defendant, by no means relieved the latter of the crime of attempting to commit the offence prescribed by the statute ; for all the cases agree in holding that an attempt to'commit a crime Js not without criminality because the object of the attempt was not accomplished. The attempt is treated as a distinctive offence.

It is also objected, that the indictment is defective because it contains no averment to negative the authority conferred by the proviso of the statute, contained in the second section thereof. But such negative averment, in a case like the present, is wholly unnecessary, according to the settled doctrine of this Court. If the traverser acted under the authority conferred by the proviso in the statute, he could show the fact as justification, by way of defence; and it was not incumbent upon the State to aver in the indictment, and show as matter of fact, that the traverser did not so act. King vs. Stone, 1 East, 644; Bode vs. State, 7 Gill, 330; Rawlings vs. State, 2 Md., 211.

For the reasons I have stated, and upon the authorities to which I have referred, I am clearly of opinion that the judgment ought to be affirmed.

(Filed 23rd June, 1887.)