32 Vt. 380 | Vt. | 1859
The important question in the case is, whether the death of the foetus before the attempt of the respondent to procure the abortion, is material as to his guilt. It is undoubtedly one of considerable practical importance. If we regarded the statute as chiefly intended for the protection of the life of the foetus it would incline us very 'strongly to the view taken of the case by the respondent’s counsel. But it is obvious that there are many other important considerations connected with the offence besides the preservation of the life of the child. The life and health of the mother, and the probability of future offspring are all so seriously put at hazard by such a transaction, when produced by mechanical means, that it is not easy to determine precisely which is the more important purpose of the statute, to prevent the injury to the child or to the mother. Then the evil example of such a practice, and the teaching the mothers, or thus attempting to teach them, the facility with which they may escape the perils of child bearing, and the consequent responsibilities, and the impediments to a life of ease and vicious indulgence, are among the most pernicious consequences of such abominable practices, and are no doubt properly to be regarded as fairly coming within the evils to be considered in fixing the construction of the statute and its probable object and purpose. We cannot, therefore, regard the continued life of the foetus as essential to the perpetration of the offence, with reference to its general character.
But undoubtedly the terms of the statute, where they define the offence, are to have a controlling effect in the matter. It would certainly not be allowable, in a case of this highly penal character, to give the statute an operation, with reference to its
Í The statute does specifically require that the woman should be ' with child at the time of committing the offence. We could not then adopt the view which was attempted with reference to Lord Ellenborough’s Act, 43 Geo. Ill, chap. 58, that it was not important whether the woman were with child or not; Lawrence, J., in Rex v. Phillips, 3 Camp. 76. But this view seems not to have finally prevailed in regard to the English statute. For in Rex v. Scudder, 3 C. & P. 605, it was held that the woman must be with child in order to insure a conviction under the 43 Geo. III, C. 58. But under the present English statute, 1 Vic. C. 85, sec. 8, and 14 and 15 Vic. C. 100, sec 9, that fact does not seem to be held essential to the conviction. Rex v. Goodchild, 2 Car. & Kir. 293 ; S, C., affirmed by the fifteen judges, id. But | under our statute it is expressly required, to constitute the offence, •that the attempt be to procure the miscarriage of a woman “tlieji. pregnantywith child.’8 This last clause is omitted in the present English statute, which is the only difference between that statute and our own. This is the only fact required to be shown under our statute beyond what is required under the English statute, and we infer that this portion of the statute of this State has been introduced purposely, de industria.
The “ miscarriageis required under the English statute. And if the term “miscarriage” may properly be predicated of a woman not with child, as the English courts held, it may surely be a multo fortiori of one where the foetus is not in life, or has died, or been killed. So that the only new question arising under our statute is, whether it is essential to the pregnancy, or being “ pregnant with'child,” that the child should be still alive. It is not claimed that it is necessary the embryo should have quickened. The general form of expression “ pregnant -with child,” seems to have been used to escape all question of this kind and have it clearly apply to every stage of pregnancy, from the earliest conception ; and if so', we see no reason why it should not extend
There are, unquestionably, many cases of pregnancy where it becomes matter of certainty that the foetus cannot come to maturity, or to birth, without the destruction of either the mother or the child, and sometimes of both. But we do not apprehend that one who should attempt unlawfully to procure an abortion in such a case, for instance, without being aware of these embarrassments in the case, is to be acquitted of the attempt to commit a crime, because thereafter it might have become necessary for the surgeon, in the course of legitimate practice, to destroy the foetus.
It would seem probable that this general form of expression, u pregnant with child,” was used in order to escape all such refinement about the probable injury, either to mother or child. The statute evidently intends to discriminate between the lawful operation of the medical man, in the due course of his legitimate practice in such cases, when it becomes imminently perilous to delay longer to interfere with the due processes of natural growth, and that voluntary interference in such matters which is prompted by no such motive, but originates in a reckless disregard and defiance of the laws of nature, in order to procure an abnormal exemption from those natural results flowing from illicit or unbecoming indulgence, which the law therefore reprobates.
We think, therefore, that it cannot, with plausibility even, be maintained that the continued life of the foetus is indispensable to the commission of the offence. Most of the vicious purpose and motive for its perpetration, in the majority of cases, still remains; all indeed, or nearly all, to which we have before alluded, if we except the chance of the birth and maturity of a responsible and useful human being, which must indeed be recognized as a very important consideration, although attended with many contingencies and uncertainties, and by no means; in itself, so important as many other consequences directly and incidentally connected with such unlawful and degrading practices.
We cannot, therefore, regard the term “ miscarriage” as necessarily implying the continued life of the foetus. And we do not understand that it is claimed the respondent did not have the full benefit of any presumption or proof in the case, that he might have acted professionally. This view, although put to the jury in form, does not seem, from the general course of the evidence as detailed, to have been a view which was or could have been much insisted upon. It seems highly improbable from the general course of the trial, that if the foetus was in fact dead, it could have been so understood at the time, either by the mother or the respondent. We can scarcely suppose the respondent so utterly ignorant upon the subject as not to have understood that if such was the fact the expulsion must inevitably occur very shortly, in the due course of nature.
The case, upon the most favorable view for the respondent, was one where the respondent believed it to be necessary to use mechanical means to procure a miscarriage, and therefore did use
In regard to the exceptions taken at the course of the trial, we shall but briefly allude to the grounds upon which we think they should now be overruled. The most important consideration to be borne in mind in revising so extended and complicated a trial, it that it should not be set aside unless upon grounds reasonably satisfactory, since, in a court of error, all fair presumptions are to be made in favor of the judgment below.
I. The extent to which the testimony of Olivia Ashe was required to be corroborated, is all that could reasonably be demanded. The corroboration must be upon points where the testimony was material to the conviction, and to such an extent, as upon the whole case to leave it satisfactory to the minds of the jury, to the same extent as would be affected by the testimony of a credible witness. We think the charge must have been so understood, and that the proof detailed did tend to show such corrobora
II. The declarations of Olive Ashe, as to the purpose of the journey in going to the respondent’s, were properly admitted as part of the res gesta. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act.
III. The declarations of Olive Ashe, offered as dying declarations, were properly rejected, and as they were only admissible in regard to the count for manslaughter, where there was an acquittal, the question has now become immaterial, except in the event of a new trial; Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. sec. 156. So, too, the judge having decided they were not so made as to be admissible as evidence, his decision is concluí sive; 1 Greenl. Ev. sec. 160; King v. Woodstock, 2 Leach Cr. Cases, 563.
IV. The testimony of Margaret Kelly seems too equivocal to be received as evidence, and if it had any possible tendency to show the fact claimed, it certainly was merely conjectural, and not of that obvious character which is required to make circumstantial evidence, and especially that which depends upon transactions of this remote and uncertain character, admissible. The admission of all the facts claimed as inferences from her testimony, may be explained upon grounds entirely consistent with the theory of the prosecution. The blood found in the pail, if it were admitted to have come from the person of the deceased, is no certain indication of an incipient micarriage.
V. The declarations of Olive Ashe, soon after her arrival at the respondent’s, as to her feelings and the state of her health, were admissible to prove these facts, if they became material in the case. The present state of health or feeling is always allowed to be proved ip this way, since it is the only mode in which it can be shown; Greenl. Ev. sec. 102 ; Aveson v. Lord Kinnaird, 6 East 188; Gray v. Young, 4 McCord 38; Gilchrist v. Bale, 8 Watts 355.
But it is not very apparent how the state of Olive Ashe’s health or feelings, at tjjp firne she came to the respondent’s, became
VI. The foetus found secreted about the buildings, was certainly a most unusual and most significant fact, and one tending very strongly to show the corpus delicti. The discovery could only be accounted for upon the theory that some one had committed an- offence of the character charged in the indictment, in the immediate neighborhood. And the history of criminal jurisprudence shows very clearly that human bones, and other remains of the human body, found secreted about the buildings occupied by the prisoner about the time of an alleged murder, are always
We think, too, that the general rule which the county court laid down to the jury, in regard to the proper weight of circumstantial evidence, was unexceptionable, and that the detail of the charge upon this particular point was sufficiently guarded, and although it is still possible the jury may have misapprehended the charge, and thus have given this portion of the evidence a more controlling effect than was intended, or was proper, we do not feel so assured of this as to justify a new trial. And finally, although I have felt some hesitation in regard to these two last points, they are so unimportant in themselves, in comparison with the other parts of the case, and the general course of the trial was so well guarded, and there being no reliable ground of belief that any departure from the strictest rules of law did occur, I feel content to overrule the exceptions upon all the points. But in doing so, to prevent misconstruction, we may be justified in saying that a more liberal and charitable view in the admission of evidence, and the construction of the respondent’s conduct, when it can be rationally maintained, is generally to be desired in criminal trials. But some cases will occur where such a view is difficult to be supported, and where it is obvious that all efforts at exculpation are but a struggle against the most embarrassing probabilities. In a case of this latter character, a court of error should not award a new trial when it is obvious from the detail of the evidence that it could be of no avail towards an acquittal, and that the trial had been fair, and patient, and satisfactory, and no obvious errors in law had occurred.
Exceptions overruled, and respondent sentenced to the State prison.