21 S.E.2d 230 | Ga. | 1942
1. To charge a commission of the crime defined in the Code, § 26-1103, the indictment must allege that the injury inflicted upon the mother of the unborn child was done with malice and with an intent to kill the mother. The indictment in the present case, failing to charge these essential elements of the crime, did not charge the accused with the offense defined in the statute; and it was error to overrule and deny his motion in arrest of judgment, after his conviction and sentence to life imprisonment, based upon this fatally defective indictment.
2. The evidence did not support the verdict, and it was accordingly error to overrule the motion for a new trial based upon the general grounds.
On the same day the defendant filed his motion for a new trial on the general grounds, which was overruled on February 26, 1942. At the same term at which the defendant was convicted and sentenced, he filed a motion in arrest of judgment, the material portions of which are as follows: "Said indictment did not allege any or sufficient material facts to constitute the crime of foeticide under said statute [Code, § 26-1103] or any other laws of this State, and the verdict and judgment thereon are illegal and void for the following reasons: (a) Said indictment fails to allege the material fact constituting the substance of the offense of foeticide under said statute that had said mother of said unborn child died as result of said alleged injuries inflicted by this defendant upon said mother `it would be murder,' which said material allegation of fact constituted the `heart' of the crime of foeticide under said statute and the laws of this State, which said failure to allege said material fact resulted in material prejudice and detriment to this defendant in the preparation of and in the defense of this defendant, and deprived him of his constitutional right to be fully informed of the crime of which he was charged. (b) Said indictment failed to allege the material fact, constituting the substance of the offense of foeticide under said statute and the laws of this State, that said alleged stick used by this defendant in inflicting the alleged injuries to said mother of said unborn child was either: (1) a weapon, or (2) a dangerous weapon, or (3) a weapon likely to cause death, or (4) a dangerous weapon likely to cause death, which said material allegation of fact constituted a substantial part of the crime of foeticide under said statute and the laws of this State, which said failure to allege said material fact resulted in material prejudice and detriment to this defendant and deprived him of his constitutional right to be fully informed of the crime of which he was charged."
The solicitor-general moved to strike the motion in arrest of judgment, on the ground that it failed to set forth any reason why the verdict and judgment should be set aside. On February 26, 1942, judgment was rendered, sustaining the motion of the solicitor-general and striking and disallowing the motion in arrest of *329
judgment. The defendant excepted, assigning error on that ruling and on the refusal of a new trial.
1. The indictment was under the Code, § 26-1103, which is as follows: "The wilful killing of an unborn child so far developed as to be ordinarily called `quick,' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be punished by death or imprisonment for life, as the jury may recommend." This section together with §§ 26-1101 and 26-1102 were all a part of the same act. Ga. L. 1876, p. 113. It is evident that in enacting this statute the legislature was undertaking to provide by penal law appropriate penalties for the destruction of an unborn child. The different degrees of punishment provided in the different sections are determined by the particular criminal elements specified in the respective sections. If the child is not developed to the point where it is called quick or alive, or if it is not destroyed or killed by delivery, and the abortion or miscarriage is brought about with the motive and by the means prescribed in § 26-1102, then the offender is subject to the misdemeanor punishment prescribed by that section. If the sole motive is to destroy the child which has become quick (Taylor
v. State,
An indictment under § 26-1103, to charge a crime at all, must contain the essential ingredients of the crime there defined, as above set forth. Since, as above stated, an essential ingredient of the crime is an injury to the mother that would have been murder had death ensued, the indictment must either contain this language or other language having the same import. That is, it must charge that the injury was inflicted with malice and with intent to kill. In Wright v. State,
2. The general grounds of the motion assert that the verdict was unsupported by the evidence. The verdict was as follows: "We, the jury, find the defendant guilty, and recommend life imprisonment." This together with the charge of the court shows that the defendant was convicted of the offense defined in § 26-1103. Having ruled in division 1 that the indictment did not charge such offense, and the evidence, if sufficient to prove the acts described in the indictment, doing no more than that, the verdict is without evidence to support it. Accordingly it was error to overrule the motion for a new trial.
Judgment reversed. All the Justices concur.