State v. MilletteState v. Millette
- Reporters:
- , ,
- Before:
- Griffith
Two indictments charge the defendant with murder in the second degree, as a principal and an accomplice respectively, under the provisions of
The defendant is a medical doctor and psychiatrist licensed to practice in this State. The indictment alleging her participation in the crime as a principal states in part that she “did commit murder in the second degree in that on May 30, 1970, she did wilfully administer to a pregnant
*460
woman, one Mary Ellen Cann, without legal excuse a substance with intent thereby to procure the miscarriage of such a woman thereby causing the death of Mary Ellen Cann.
Among the reasons urged by defendant to quash the indictments is the following: “New Hampshire RSA ch. 585:14 upon which this indictment is also based is unconstitutional in that it renders a defendant liable to adjudication of guilt of murder in the second degree solely upon a violation of RSA ch. 585:12 where death occurs without requiring an allegation, evidence or proof of the mens rea required for the crime of murder and further subjects such a defendant to the possibility of life imprisonment based only on the intent required for a misdemeanor (
It appears that these indictments are framed on the theory that
There were no degrees of murder at common law. Our statute on murder established degrees primarily to distinguish capital homicide and left the definition of murder to the courts.
Mens rea in murder is more intelligibly expressed as “malice” without the addition of the word “aforethought” which adds nothing but confusion in view of the use of the statutory terms “deliberate and premeditated” in the definition of first-degree murder.
See
The ancient ecclesiastical law of homicide harshly ruled that if a man accidently causes death because of a prohibited act, however remote from the death, the actor is liable for the death. Binavince, The Ethical Foundations *462 of Criminal Liability, 33 Fordham L. Rev. 1, 17 (1964). In the development of the common law, malice was always a necessary element in the crime of murder but in earliest times malice was imputed in all cases of homicide occurring in the commission of a felony. Moreland, Law of Homicide 14 (1952). “There has been, however, a tendency to retreat from the position that any felonious act must be murder, and rather to insist that for this result the act must be a dangerous one, assisted perhaps by the assumption that certain felonies such as arson, rape, robbery and burglary are inherently dangerous.” Perkins, Alignment of Sanction with Culpable Conduct, 49 Iowa L. Rev. 325, 364 (1964); People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924).
Neither the legislature nor our court ever adopted a presumption of malice from the commission of an unlawful act whether felony or misdemeanor. While language in our cases defining murder may be construed to presume malice from a homicide occurring during the commission of the named inherently dangerous felonies
(State
v.
Pike,
49 N.H. 399 (1870);
State
v.
Greenleaf,
71 N.H. 606, 54 A. 38 (1902);
State
v.
Thorp,
86 N.H. 501, 171 at 633,
State
v.
Nelson,
103 N.H. 879 (1961)) malice remains an indispensable element in the crime of murder. “Malice is not an inference of law from the mere act of killing; but like any other fact in issue, it must be found by the jury upon competent evidence.”
State
v.
Greenleaf, supra
at 614. Our statute on indictments provides that it shall be sufficient in an indictment for murder to charge that “the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased, and in an indictment for manslaughter to charge the defendant did feloniously kill and slay the deceased.”
*463
The new criminal code
The foregoing background of our law on homicide makes
Abortion of an unquickened foetus was not a crime at common law. Only the destruction of a quick foetus was punishable and then only as a misdemeanor. Perkins, Criminal Law,
supra
at 140. In
State
v.
McNab,
20 N.H. 160 (1849), an indictment brought prior to the enactment of our abortion statutes charged the accused with causing the death of a woman by means used to procure an abortive childbirth. It was held that liability for the homicide above the degree of manslaughter could not be charged where it was not alleged that there was an intent to cause the death. The crime, it was said, was distinguished from murder by the absence of malice. The only abortion homicide case reported since the original enactment of
Neither of the above two cases compels any particular interpretation of
Defendant points out that at the time of this statute’s enactment, the early cases and statutes in other jurisdictions imputing malice to cases of death resulting from abortions reflected the factual context of the era. Resting upon a premise that malice may be implied from unlawful acts dangerous to life they had a solid basis in the inherent danger of abortions at that time. See Commonwealth v. Parker, 50 Mass. 263, 265 (1845); State v. Moore, 25 Iowa 128 (1869); Smith v. State, 33 Me. 48 (1851). But cf. State v. McNab supra. Early proscription of the practice of abortion primarily sought to protect pregnant women from risks present in all surgical procedures at that time. Both hospital abortion and childbirth at full term were fraught with deadly danger. Anesthesia and bacteria were discovered only at the time that our abortion statutes were passed. Antibiotics and blood-banks are twentieth century developments. Tietze and Lewitts, Abortion, 220 Scientific American 3 (Jan. 1969). Defendant points out that the language of our statute is taken almost literally from the 1829 New York Penal Code. Indicative of the tenor of the times was an unenacted proposal in that code making surgical operations generally a crime unless necessary to preserve life.
While the foregoing may be an explanation for the language of the statute it does not require us to interpret this statute as dispensing with malice in a prosecution for murder where an unintended death resulted from commission of a misdemeanor. Holmes rudely stated “even a dog distinguishes between being stumbled over and being *465 kicked” (Holmes, The Common Law (1881)) and the universal recognition of the importance of intent permeates our system of law. Chief Justice Doe noted that “the criminal law does not generally accomplish its object by a conclusive presumption of mental guilt contrary to the fact” (Lyons v. Child, 61 N.H. 72, 73 (1881)) and we think it would be contrary to our law of murder to so interpret this statute. See Bowdler v. Company, 88 N.H. 331, 189 A. 353 (1937).
The indictments here fail to allege that the defendant killed Mary Ellen Cann with malice aforethought as provided by
The defendant is entitled to have her motion to quash granted. The State may indict and try the defendant for second-degree murder under
In view of the result reached we have not considered the other grounds of the defendant for dismissal of the indictments.
Defendant’s exception sustained; indictments quashed.
All concurred.