90 Wash. 474 | Wash. | 1916
Appeal from a conviction upon an information charging abortion by the use of certain instruments. The first error charges a defect in the information in failing to allege the manner in which the instruments were used. This same error was urged and overruled in State v. Gaul, 88 Wash. 295, 152 Pac. 1029, it there being held that the information need not allege the name of the instrument nor the manner of its use. What is said in the Gaul case, and the authorities there cited, disposes of this contention, and the information is sustained.
It is next urged that the lower court erred in sustaining an objection to a question propounded the prosecuting witness by appellant asking her to name the man she blamed for her condition. The ruling was correct, the paternity of the child not being an issue. People v. Wah Hing, 15 Cal. App. 195, 114 Pac. 416.
Neither is pregnancy an issue under our statute (Rem. & Bal. Code, § 2448; P. C. 135 § 391), which reads as follows:
“Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall — -
*476 “(1) Prescribe, supply or administer to a woman, whether pregnant or not, or advise or cause her to take any medicine, drug or substance; or
“(2) Use, or cause to be used, any instrument or other means; . . .”
This statute, and similar ones in other states, is substantially derived from the English statute on the same subject. Its proper interpretation, in so far as it is designed to punish an attempt to produce a miscarriage by any of the means mentioned in the statute to any woman, whether pregnant or not, when such attempt is made with an unlawful intent, is given in 1 R. C. L. 77 as follows:
“Prior to the enactment of the English statute which expressly dispensed with the necessity of pregnancy, an earlier statute punished any one who, ‘with the intent to procure the miscarriage of any woman,’ should administer any medicine, or use any instrument, etc., and it was held that though the woman was not in fact pregnant a conviction could be had. In a number of jurisdictions in the United States similar statutes have been enacted, and the courts have followed the construction placed on the English statute and have held that one who with the intent to procure the miscarriage of a woman administers to her any drug, etc., or uses upon her any instrument, is punishable though the woman is not in fact pregnant.”
The same rule is recognized and stated in 1 C. J. 312. This interpretation is sustained without exception in all states having similar statutes. The Massachusetts statute provides that,
“Whoever with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug,” etc.
Based upon this statute, the ruling has uniformly been that it was unnecessary either to allege or prove pregnancy. Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; Commonwealth v. Follansbee, 155 Mass. 274, 29 N. E. 471; Commonwealth v. Taylor, 132 Mass. 261. The Florida stat
Appellant’s argument in support of this claim of error is based upon citations from states having statutes making pregnancy material. Such cases can have no application under statutes such as ours.
The next assignment of error is based upon the sustaining of objections to questions addressed to the mother of the complaining witness and to a police matron, in which they were asked why they had not accused, arrested or prosecuted the man deemed responsible for the girl’s condition. We see no materiality in such testimony, and the ruling was correct.
The next assignment is in sustaining objections to testimony seeking to elicit from a married female cousin of the complaining witness the fact that she believed herself pregnant at the time she accompanied complaining witness to the office of appellant, and that on the same night her menses returned in the natural manner.- We can see no relevancy in such testimony.
The next assignment of error is in sustaining objections to the following question asked complaining witness with reference to her relations with the man she believed responsible' for her condition: “Now, as a matter of fact, it was you that went to his bed.” The girl had already testified that the man was a married man, that the intercourse took place at his home, and that it was voluntarily indulged in on her part. She had further testified that this man was not the only one she had been intimate with, so there was sufficient evidence before the jury to affect the credibility of the witness, if that was what was sought. The evidence was cer
Error is urged against two instructions as a comment upon the facts. We find no exception was taken to the first instruction, and further reference to it is unnecessary. The second is as follows:
“Neither should the fact that--may be a young girl or that she may be unmarried have any weight in your deliberations. Whatever views you may entertain as to the policy of this prosecution or as to whether the same be wise or unwise such views cannot affect in any degree the question involved of guilt or innocence. This question is one of fact and depends upon the evidence alone, unaffected by any consideration of policy.”
We find nothing objectionable in this instruction.
Other errors are addressed to rulings made subsequent to the trial covering the same points already discussed. They are all without merit.
The judgment is affirmed.