State v. Moothart

Oct 6, 1899
Reporters:
,
Before:
Given
Given-, J.

I. Thе defendant’s first contention is that the indictment is defective, in that it does not set forth the manner of administering the drag, nor sufficiently describe 1 the drug, “and state whether it was liquid,, solid or gasеous.” It is argued that as there are various foams of drugs, and various ways of administering them, the form of the drug and the manner in which it was administered should be set out. Section 4759 of the Code, under which this indictment is found, is as follows: “If any person, with intent to produce the miscarriage of, any pregnant woman, willfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the penitentiaiy for a term not exceeding five years, and be fined in a sum not exceeding one thousand dollars.” Section 5289 of the Code provides that the indictment is sufficient if it can be understood therefrom” (5) that the act or emission charged as the offense is stated in ordinary and conoise language, with such *133certainty and in snob manner as to enable a person of common understanding to know wbat is intended, and the court to pronounce judgment according to law upon a conviction.” ‍‌‌​​​​​‌‌​​​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌​​‍.This indictment clearly states as fact that which, if true, constitutеs an offense punishable by law, and it is direct and certain as to these facts. See State v. Potter, 28 Iowa, 554 State v. Chicago, B. & Q. Ry. Co., 63 Iowa, 508; State v. Brandt, 41 Iowa, 593, and like cases cited are not in point. 2 This charge brings the case clearly within said section 4159. Defendant also contends thаt the indictment is defective for that it does not charge that the drug was taken. It is argued that it could not be “administered” unless taken. If taking is necessary to constitute an administering then to charge that it was administered charges that it was taken. The crime, however, defined in said section 4159, and charged in this indictment, is “attempting to produce miscarriage,” and may be committed whether the intended means axe used or taken or not, and whether the intended miscarriage is produced of not. The indictment sufficiently charges the crime of “attempting to produce miscarriage.”

II. Defendant next contends that the evidence does not show “an administering of the drug.” It shows that for some time immediatеly prior to the matters charged the defendant and Martha Man* were intimate; that he frequently visited her at places where she was living, distant from where he lived; and that they indulgеd in sexual intercourse, which resulted in her becoming pregnant. It shows that it was arranged between them that the defendant should procure and send fo her by mail a drug that would produce a miscarriage, and which she was to take for that purpose. The defendant procured a drug called “ergot,” which, if taken in sufficient quantity by‘a pregnant-womаn, will produce miscarriage, and sent it to Martha Man* by mail. She received the drug, and took two doses, but not in sufficient quantity to produce the intended result. It is argued that, to administer the drug, *134tbe defendant must have been personally present, and bave given it to Martha Harr to be taken. It is said, “Tbe statute contemplates that tbe administering shall be as. рersonal and direct ‍‌‌​​​​​‌‌​​​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌​​‍as^vhere it uses tbe words, ‘used any instrument.’ ” Tbe words “used any instrument or other means,” as found in said section, do not mean that the accused must bave performed 3 an operation in person with the instrument or other means. He uses the instrument or other means when lie furnishes them to be applied to tbe forbidden purpose, and be administers tbe drug when lie furnishes it for tbe same purpose. Any other construction would defeat the plain intent of this statute, and place, it in the power of evil-disposed рersons to carry out their criminal intents with impunity by sending a drug, instrument, or other means of producing miscarriage through the mail or other channels of conveyance. Sending a drug by mail to Martha Han*, to be taken by her for this forbidden purpose1, is so clearly an administering of it, within the meaning of the statute, as to require neither argument nor citation.

III. The defеndant and Martha residing in different places during their intimacy, bad considerable correspondence through the mail. The letters received by her were properly identified and introduced in ovidcnco by the state. No notice was served upon the defendant to produce the letters received by him from Martha Man*. The defendant сomplains that the prosecutrix was permitted to testify over bis objection to part of the contents of some of the letters written by her, upon tbe ground that the proper foundation bad not been laid for admitting this secondary evidence. In ruling upon the objection the court said: “The objection is overruled, because the lettеr is in the possession of the defendant, and the defendant is present in court, by his counsel, and does not present the letter himself, and he cannot be required to produce it; lienee the witness is permitted to- state the contents.” 4 The defendant complains of this ruling and statement. Let it be conceded that ‍‌‌​​​​​‌‌​​​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌​​‍the ruling was erroneous; yet it was clearly without prejudice to the *135defendant. Tbe only evidence given as to the contents of any of ‘the letters written to the defendant was the statement of Martha, “I wrоte him that he conld come and see me.” This she said was in answer to a letter from him asking if he might visit her. There is no controversy but that he did, with her permission, visit her frequently, and therefore this statement as to the contents of her letter was without prejudice to the defendant. Defendant also complains that Martha Marr was permitted, over his objeсtion, to testify that certain let> ters, twenty in number, were received by her from hiin in-5 reply to letters written by her to him, and that they were in his own handwriting. These letters were competent, as tending to show the relation of the pаrties, and there was no error in admitting this evidence of their identity. A letter from defendant, marked “33,” is especially objected to, because written some time after the drug had failed to produce a miscarriage. This letter is identified as written by the defendant, and was written in pursuance of a promise to send to Martha Marr something that would cаuse 6 miscarriage. In the letter he says, “I wish you would give the writer a fair test.” What was meant by the word “writer” is not apparent, but Martha says it refers to a lead pencil furnished her to use to produce a miscarriage. While it is true ‍‌‌​​​​​‌‌​​​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌​​‍the charge is administering a. drug, this evidence was competent to show the intent with which the defendant acted, and the fact that the letter wasi written after the attempt had failed does not render it less competent for that purpose.

IV. The court, in the ninth instruction, used this language: “Evidence liаs been admitted before you, both written and oral, as to declarations made by the defendant to the prosecuting witness, in which there is reference made to the usе by the said prosecuting witness of a ‘writer/ which was explained by the prosecuting witness asi meaning a lead pencil which the prosecuting witness claims was given to her by the dеfendant with the instruction to use the same for the *136purpose of producing a miscarriage of her child.” The defendant insists that this was not a correct statement of the testimony, and was prejudicial. We think the statement is fully .sustained by the testimony, and the application thereof was carefully guarded in what immediately follows in the same instruction. In this connection complaint is also made of certain statements of the county attorney in his opening statement and in argument to the jury. These, so¡ far as they apрear in the record, were fully warranted by the issues ‘and the evidence, and afford no grounds for complaint.

Y. Defendant insists that the court erred in refusing instruction 1 asked by the defendant, and argues that “it was defendant’s right to have the attention of the jury called to the ‍‌‌​​​​​‌‌​​​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌​​‍improbability of his intending to produce a miscarriage, when the drug administered- in the quantity shоwn could not by any possibility have produced any effect whatever.” There 7 is evidence showing that a much larger quantity of ergot than that taken was necessary to¡ рroduce miscarriage, but the production of a miscarriage is not essential to the crime charged. Defendant also complains of the refusal to give the second instruction asked, upon the ground that the prosecuting witness was a willing accomplice, and that the jury should have been told that her evidence was thereby to some extent discredited. The jury was sufficiently instructed as to rules for determining the credibility of witnesses, and the weight to be given to their testimony.

What we have said fully disposes of all the claims made in argument, and leads to the conclusion that the defendant had a fair and impartial trial, that the judgment of the district court is correct, and that it should be affirmed.