State v. Gibbons
120 N.W. 474
Iowa
1909
Check Treatment
McClain, J.

Thе ruling of the trial court that the indictment did not charge murder in the second degree was made when the prosecution offered to show the dying declaration of the woman whose death was alleged to have resulted from the attempt to procure an abortion, holding thаt, as the indictment was not sufficient to sustain a conviction for murder, dying declarations were not admissible. This ruling ‍‌​​‌​‌‌​​​​‌‌‌‌‌​​‌​‌‌​‌​‌​​​‌‌​​​‌‌​​​​​​‌​​​‌​‍was prejudicial to the prosecution, for the result was not only to relieve thе defendant from punishment for the higher crime, but also to make it more difficult by reason of the еxclusion of dying declarations to convict for any crime. The sufficiency of the indictment to charge murder in the second degree is the only question submitted and the only one which we have occasion to consider.

The charging part of the indictment states:

That Martha Gibbons at and within said county on the 16th day of January, A. D. 1908, did wilfully and feloniously administer to one Mrs. John Weaver, she being then and there a pregnant woman, some medicine, drugs or substance, the exact name and character of which is to the grаnd jury unknown, and did then and there use a certain instrument, the name and particular description оf which is to the grand jurors unknoivn, with the intent then and there to unlawfully produce miscarriage on the рerson of her, the said ‍‌​​‌​‌‌​​​​‌‌‌‌‌​​‌​‌‌​‌​‌​​​‌‌​​​‌‌​​​​​​‌​​​‌​‍Mrs. John Weaver; said miscarriage not being necessary to save thе life of the said Mrs. John Weaver. That the said defendant in the manner aforesaid in Fayette Cоunty, Iowa, on the 11th day of January, 1908, by and with the use of said drug and substance, and the use of said instrument aforesaid, did produce a miscarriage on the body and person of said Mrs. John Weaver, which miscarriage was not necessary to save the life of the said Mrs. John Weaver. That defеndant by said miscarriage did on the 25th day of *98January, 1908, in Fayette County, State of Iowa, cause the death of said Mrs. John Weaver, and the said defendant did then and there in the mhnner aforesaid, by сausing said miscarriage, wilfully, feloniously, maliciously, ‍‌​​‌​‌‌​​​​‌‌‌‌‌​​‌​‌‌​‌​‌​​​‌‌​​​‌‌​​​​​​‌​​​‌​‍deliberately and with malice aforethought kill аnd murder the said Mrs. John Weaver, contrary to the statute in such case made and provided, and against the jieace and dignity of the State of Iowa.

The objection to the indictment аs a charge of murder in the second degree is that the act is not alleged to have been done with malice aforethought; for, while it is said by way of conclusion that the defendant did with mаlice aforethought kill and murder the person named; it is not said that the attempt to procure a miscarriage by means of drugs or instruments was made with malice aforethought. The crime of murder in the second degree necessarily involves an act done with ‍‌​​‌​‌‌​​​​‌‌‌‌‌​​‌​‌‌​‌​‌​​​‌‌​​​‌‌​​​​​​‌​​​‌​‍malice aforethought. Code, section 4727. But that term used in defining the crime is technical rather than descriptive. It dоes not necessarily require an intent to murder. Malice aforethought may be implied wherе there is no intent to kill, but an intent to commit a felony from which death results, although that result is unintended. That death resulting from a criminal attempt to commit an abortion constitutes murder in the second degree is in this State well settled. State v. Moore, 25 Iowa, 128; State v. Leeper, 70 Iowa, 748. It is conceded that, if the term with “malice aforethought” had been used as describing the acts done as well as in charging ‍‌​​‌​‌‌​​​​‌‌‌‌‌​​‌​‌‌​‌​‌​​​‌‌​​​‌‌​​​​​​‌​​​‌​‍the killing, then the indictment would have beеn sufficient to sustain a conviction for the second degree of murder.

Some courts havе adhered with great strictness to the common-law requirement that the. very words used in the statute to define murder shall be embodied in the indictment. See, for example, McElroy v. State, 14 Tex. App., 235; Witt v. State, 6 Cold. (Tenn.), 5. But the rule is *99usually stated as requiring these words or at least their equivalent. 2 Bishop, New Criminal Procedure, section 544. And there is good authority outside of our own State for saying that, if the act is so charged as to necessarily constitute murder, the exact form of words is immaterial. People v. Vance, 21 Cal. 400; People v. Schmidt, 63 Cal. 28; Edwards v. State, 25 Ark., 444; Chase v. State, 50 Wis., 510 (7 N. W., 376). In a case exactly parallel with the one before us as to, the acts charged and .the language in which the charge is made, this court has held that the omission of the specific words “malice aforethought” is immateriаl, and that defendant may be convicted for murder in the second degree. State v. Thurman, 66 Iowa, 693. This case was probably not called to the attention of the trial judge, as it is not cited fiy counsel for the State in argument here, but it seems to be conclusive on the question, and we therefore without hesitation find that the- trial judge erred in not allowing the prosecution to proceed on thе charge of second-degree murder which the indictment was unquestionably framed to present. As this error led to the exclusion of evidence which would have been .competent had the defendant been tried on that charge, the judgment must be reversed; but, as the defendant has been acquitted, no further proceedings can be had. — Reversed.