56 Colo. 330 | Colo. | 1914
Lead Opinion
delivered the opinion of the court:
1. Defendant was convicted of violating the statute which, so far as applicable to this case, provides: That every person who shall use or attempt to use any instrument with the intention to procure a miscarriage of any woman then being with child shall be punished, etc., M. A. S., Rev. Ed. 1912, sec. 1775. The information, omitting formal parts, charges: ‘ ‘ That T. Sarkisian on, to-wit, the 28th day of October, A. D. 1911, at the city and county of Denver, state of Colorado, did then and there unlawfully, feloniously and maliciously use and cause to be used a certain instrument and instruments with the intention to procure a miscarriage of one Floy Ripley, the said Floy Ripley being then and there a woman then and there with child, etc. ’ ’
2. On the trial, Floy Ripley was permitted, over the objection of defendant, to testify for the prosecution that she asked a certain druggist in Denver if he knew any
The judgment will be reversed.
While the majority of the court are of the opinion the case should be reversed for the error above indicated, the writer believes other prejudicial errors were committed on the trial.
The court instructed the jury, omitting the italicized
I also think the motion to quash the information should have been sustained. It contains no allegation as to the manner of using the instrument, and it will be observed that there is no specific charge that it was used on any person. It simply says that it was used with the intent to procure a miscarriage of Ploy Bipley. The motion to quash was interposed in apt time on this ground and overruled. The information follows no approved form, so far as I have been able to discover. The intention was evidently to plead in the language of the statute, which in some cases is sufficient, especially where the statute describes the acts constituting the offense; but where the statute does not so specify, as here, then generally good pleading requires that the facts constituting the offense, be pleaded.—Schneider v. People, 30 Colo. 493, 71 Pac. 369; Cochran v. People, 175 Ill. 28, 51 N. E. 845; Olmstead v. People, 30 Mich. 431; State v. Potter, 28 Ia. 554.
I think this should have been done in the case here. The information undoubtedly would have been held suffi
I am authorized to state that Mr. Justice Hill and Mr. Justice Scott concur in the views herein expressed.
Reversed.
Decision en banc.
Mr. Justice White not participating.
Mr. Justice Gabbert dissents.
Dissenting Opinion
dissenting:
I do not concur in the judgment of reversal. It is based solely upon the ground that it was error to admit in testimony the statement of the prosecuting witness to the effect that the druggist told her he knew a doctor who would help her out of her trouble. Conceding that this testimony was not admissible it is clear that the defendant was not prejudiced by its admission. The two important questions of fact involved were, whether the prosecuting witness was pregnant at the time she called upon the defendant and, if she was, whether he attempted at her solicitation to cause her to have a miscarriage. The testimony stands undisputed that when the witness visited the defendant she was pregnant and went to him for the express purpose of having an abortion produced. The defendant admitted that she told him she had been having illicit relations and that she wanted to know whether she was pregnant. He also admitted that he treated the witness for the purpose of overcoming some difficulty of the womb. It appears without question that after this treatment dead foetal tissue was removed from that organ. In the face of the undisputed facts that the
Why should he treat the prosecuting witness for any purpose except to produce an abortion when she went to him for that purpose only? With her pregnancy and purpose standing undisputed and the defendant admitting, as he did, that he treated her, when according to the undisputed facts his object could have been none other than to cause her to have a miscarriage and that thereafter she was. in the condition which would result from the use of instruments with intent to produce an abortion, it is evident beyond question that admitting the statement of the druggist could not and did not have the slightest influence upon the jury.
In my opinion the judgment of the district court should be affirmed'.