16 Utah 212 | Utah | 1898
In this case the record discloses that on the 2-lst day of September, 1896, complaint in writing was filed, on the oath of Alexander Wilkins, before Charles De Moisey, justice of the peace of Provo precinct, Utah county, Utah,
Section 4507, Comp. Laws Utah 1888, is found in the statute under title of “ Abortions.” Under section 23, art. 6, of the constitution, the subject of a law should be clearly expressed under its title. The statute referred to reads as follows: “ Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means, whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable,” etc. Section 5046, Comp. Laws Utah 1888, provides that upon a trial for procuring, or attempting to procure, an abortion, etc., the defendant cannot be convicted on the testimony of the woman, unless corroborated. The legislature enacted section 4507, and entitled it “Abortions.” It enacted section 5046, and provided that, upon trial for attempting to procure an abortion, certain evidence was necessary.» Webster defines “abortion” to be
The examining magistrate made and entered in his docket containing the complaint and proceedings, a transcript of which wras filed with the court, the following order: “ It appearing to me that the offense as charged in the complaint has been committed, and that there is sufficient cause to believe the defendant guilty thereof, I order that he be held to answer the same.” This return was clearly sufficient to designate the crime for which the defendant was held. In another return on the back of the complaint the justice certified: “ It appearing to me that the offense of procuring an abortion has been committed, and that there is sufficient cause to believe the defendant guilty thereof, I order that he be held to answer the same.”' This certificate, when indorsed upon the complaint filed that specifically charges the procuring of a miscarriage, especially when taken together with the first return, ought not to mislead the court or confound the defendant in his
In State v. Clark, 35 Pac. 710, it is held that an order of commitment made in writing, and entered in the docket of the committing magistrate, is valid, although not indorsed on the depositions taken at the former examination, as directed by the statute. In People v. Wilson, 93 Cal. 377, a statute like that of Utah was held directory, and that the order holding the defendant for trial was effective, if en tered upon the docket of the justice. 1 Bisb. Cr. Proc. § 41G. In People v. Tarlox (Cal.), 46 Pac. 796, under the same statute, it is held that the order holding to answer must be in writing, and, when the order is actually made and entered upon the docket of the justice, no other action is necessary on his part to authorize the district attorney to file an information against the defendant for the offense named in the order. Section 4976, Comp. Laws Utah 1888, roads as follows: “If the demurrer is allowed, the judgment is final, upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or to another jury.” Section 1008 of the Pena'l Code of California is the same as section 4976 of the Utah Statutes. Informations are governed and tested, in certain respects named in the statute, by the same rules of pleading as are provided for in indictments. Sess. Laws 1896, p. 98.
The defendant’s idea of former acquittal of the same
We are of the opinion that the order óf the justice as entered upon his docket, with the proceedings attending the examination as certified and filed with the court, holding the defendant for the crime charged in the complaint, was a sufficient order upon which the information could be filed, and that the court erred in failing to so instruct the jury, and in failing to give any instructions on that subject, and in instructing the jury that, if the committing magistrate did.not bind the defendant over for the offense for which he was then on trial, but bound him over for the offense of procuring an abortion, which binding over was evidenced as shown by the indorsement of the committing magistrate on the complaint filed (wherein