102 P. 295 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
Defendants were indicted by the grand jury of Multnomah County for the crime of committing an act grossly disturbing the public peace and health, openly outraging public decency, and injurious to public morals; the charge-being in the following language:
“That the said C. H. Atwood and C. H. T. Atwood on the 1st day of January, 1908, then and there unlawfully conspiring, confederating and agreeing with each other thereto, did on said day, in the said county and state, willfully and wrongfuly set up, equip, furnish with apparatus, and thence continuously until the 1st day of November, 1908, keep and maintain a certain public house and public place, known as a ‘maternity hospital,’ with the intent and purpose of them, the said C. H. and C. H. T. Atwood, of willfully, wrongfully and unlawfully committing, producing and procuring abortions in said house and place upon women pregnant with child, and so having set up, furnished, equipped, kept and maintained the said house and place with the intent and for the purpose aforesaid, the said C. H. T. Atwood and C. H. Atwood, on the 4th day of September, 1908, in the said public house and place, known as the ‘maternity hospital’ aforesaid in the said county and state, did willfully and wrongfully commit and produce an abortion upon one Mahala Roberts, she, the said Mahala Roberts, then and there being a woman pregnant with child, and*529 did then and there, between the said 1st day of January, 1908, and the said 1st day of November, 1908, willfully and wrongfully commit and produce upon women then and there pregnant with child, the names ana numbers of which women are to the grand jury unknown, abortions, contrary to the statutes,” etc.
The defendants were tried thereon, and a verdict of guilty returned against them, and judgment and sentence pronounced against them thereon, from which this appeal is taken.
“Hence it follows that an offense may be punishable, if in its nature and by its example it tends to the corruption of morals, although it be not committed in public. * * Curl was convicted of selling a book. It is true the indictment charged the act to have been in a public shop, but that can make no difference; the mischief was no greater than if he had taken the purchaser in a private room and sold him the book there. The law is not to be evaded by an artifice of that kind. If the privacy of the room was a protection, all the youth of the city might be corrupted by taking them, one by one, into a chamber, and there inflaming their passions by the exhibition of lascivious pictures. In the eyes of the law this would be a publication, and a most pernicious one.”
The allegations of abortion upon Mahala Roberts and other women do not state facts that constitute a crime under Section 1748, B. & C. Comp., and are not intended to, but are only allegations of acts done in the perform
From the foregoing statements of the law we conclude that the acts charged against defendants were not lawful, neither authorized by law, nor morally right, but constitute a nuisance per se, and therefore need not be shown to be performed in a public place, and we conclude that the acts charged, in the indictment are sufficient to constitute a nuisance under Section 1930, B. & C. Comp.; and the judgment of the court is affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
I am unable to concur in the conclusion announced in the majority opinion in the foregoing action. However, as to the first point there considered, concerning the particular moment when pregnancy with child may, under the statute, be deemed to exist, I shall express no opinion. A decision upon this point is not essential to a determination of the merits of the cause, and, as observed on the same point in State v. Dunn, 53 Or. 304 (100 Pac. 258), should be reserved for future consideration, especially so in view of the fact that in the case cited, as well as in the one under consideration, each of the counsel for the respective parties to the controversies conceded that the use of the words “pregnant with child,” so far as any prosecution under Section 1748, B. & C. Comp, is concerned is synonymous with the expression “quick with child,” and that the same rules of law are applicable
As stated by Mr. Justice Waldo, in State v. Smith, 11 Or. 207 (8 Pac. 343), “An indictment must be so drawn as to exclude any assumption that the indictment may be proved and the defendant still be innocent.” The section under which this prosecution is brought contains no specific reference to the class of acts attempted to be charged against the accused, thereby making it impossible to charge the offense in the language of the statute. The only averments tending to bring the charge within the statute are that the defendants did wrongfully, unlawfully and contrary to the statutes, equip and maintain a certain house and place, known as a “maternity hospital,” for the purpose of producing abortions upon women pregnant with child. The words “wrongful, unlawful, and contrary to the statutes in such cases made and provided” are statements of conclusions only: State v. Stroud, 99 Iowa, 16 (68 N. W. 450). Take from the indictment these words, and it will be found that the defendants are merely charged with intentionally maintaining a “maternity hospital” where abortions were produced upon various women,- including one Mahala Roberts. Nothing appears within the charge to indicate that the
The majority opinion holds that “if we had a statute authorizing the procuring of abortions in certain cases, it might be necessary, in an indictment in such a case as this, to negative such exceptions, but we have no such statute.” This statement overlooks the fact that the common law, as well as all statutes bearing on the subject, recognize the right to commit abortions in certain eases, such as to preserve the life of the mother, etc. Indeed, Section 1748 of the Code, quoted in the opinion, contains this exception. It cannot, then, be said that abortions are either malum in se or a nuisance per se: 21 Am. & Eng. Enc. Law (2 ed.) 683; 14 Pl & Pr. 1098. Hence, under the most unfavorable view possible, it could only be such as are unnecessary and which may be committed for immoral purposes, that may come within the malum in se, or nuisance per se rule; and every rule of pleading requires that, to bring the accused within the
The charge intended by the indictment is a criminal charge; and, while it refers to the business affairs in which the accused may be engaged, the manner in which it is intended to allege the business was conducted is criminal in character, and the defendants were convicted accordingly, and, as recently held by this court in State v. Eisen, 53 Or. 297 (100 Pac. 257), and numerous other authorities there cited from this court, “an information or indictment must negative such exceptions as are expressly or impliedly included in the stat
I feel compelled, therefore, to dissent from the conclusion reached by the majority, and think the indictment clearly insufficient to sustain the judgment of conviction of defendants, and that the judgment of the lower court should be reversed.
Rehearing
On Rehearing.
[104 Pac. 195.]
Concurrence Opinion
concurs in the foregoing opinion. Justice Bean has retired from the bench since the trial of this cause, and, as Justices King and Slater dissent from the conclusions reached, therefore a majority of the court are unable to agree upon a .decision, from which it follows that the judgment must be affirmed.
Affirmed.