187 Ind. 694 | Ind. | 1918
— The grand jury for Lawrence county, at the November term, 1916, of the Lawrence Circuit Court returned into that court an indictment in four counts against appellant and one Spencer Smith, charging them jointly with the crimes defined by §§2256, 2647 Burns 1914, Acts 1905 p. 584, §§367, 641. Section 2256 reads as follows: “Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine or substance whatever, with intent thereby to procure the miscarriage of such woman, or with like intent, uses or suggests, directs or advises the use of any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, on conviction, if the woman miscarries, or dies in consequence thereof, be fined not less than one hundred dollars nor more than one thousand dollars, and be imprisoned in the state prison not less than three years nor more than fourteen years.”
Section 2647 is as follows: “Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars nor more than five thousand dollars, and imprisoned in the state prison not less than two years nor more than fourteen years.”
The first two counts of this indictment separately charged appellant with the use of an instrument, in the first a catheter, and in the second ah instrument to the
In support of his motion to quash, he insists that the record discloses that two members of the grand jury regularly drawn were by the court discharged from service for the term, and their places supplied upon an order of court to the sheriff to complete the panel from the bystanders, which was done. From this statement he contends that the grand jury was not selected according to law, and for that reason was illegally constituted.
Our attention is called to §1668 Burns 1914, Acts 1881 p. 557, as amended, Acts 1913 p. 15. This section provides the manner of drawing the names of persons to be summoned as grand jurors, and §544a Burns 1914, §519 R. S. 1881, was construed by this court in the case
Appellant, in support of his motion for a new trial earnestly insists that the trial court erred (1) in refusing to give the jury instructions Nos. 33, 36, and 42
Instruction No. 42 and the evidence concerning the proof of venue may be considered together. Instruction No. 42 reads as follows: “In every count of the indictment herein, it is charged that every material element of the ofirense was committed in Lawrence county, Ind. I instruct you that under such counts, the State must prove beyond reasonable doubt that each of said material elements was committed as charged in Lawrence county, Indiana, unless the venue has been so proven, it is your duty to acquit the defendant.”
The indictment in this.case alleges in substance that the overt act with intent to produce a miscarriage on the woman then pregnant, and also miscarriage and death of the woman, occurred in Lawrence county, Indiana.
Counsel for appellant earnestly assert that there is no evidence to show that the overt act which brought
This being a criminal prosecution, it will be conceded that the venue is one of the essential elements which must be proved in order to sustain a conviction. Strickland v. State (1908), 171 Ind. 642, 87 N. E. 12, and cases cited; Garst v. State (1879), 68 Ind. 101.
We have carefully read the evidence as it appears in the record, and nowhere in it do we find a chance for an inference that any part of the crime with which appellant is charged took place in any county other than Lawrence. The parties to the alleged crime resided in that county. It unquestionably appears that in the afternoon of November 3, 1916, appellant and the girl for whose pregnant condition he was responsible left Bedford in an automobile for the purpose of seeing a doctor who had been engaged to produce an abortion on this eighteen-year old girl. They drove from Bedford over what is known as the Bedford and Leesville road to Leesville, and then into an alley of that town, and stopped at a barn of a certain resident doctor. The doctor met them in the alley, and, after a
This conclusion from the evidence, and the fact that
Note. — Reported in 121 N. E. 114. Time and method of objecting to sufficiency of indictment, 1 Ann. Cas. 479, 22 Cyc 417.