68 Vt. 529 | Vt. | 1896
The respondent was tried on an indictment containing six counts, the last two of which were abandoned by the prosecution before the trial commenced. The respondent interposed a general demurrer to each count. The court pro forma overruled the demurrer and adjudged the indictment sufficient.
It is insisted by the respondent that the indictment is insufficient, in that it contains no averment that a miscarriage was not necessary to preserve the life of the woman. In each count, it is averred that the means employed, with intent to procure a miscarriage, were not necessary to preserve her life. R. L., s. 4247, provides that a person who willfully administers, advises or causes to be administered anything to a woman pregnant, or supposed by such person to be pregnant, or employes or causes to be employed any means with intent to procure a miscarriage of such woman, or assists or counsels therein, unless the same is necessary to preserve her life, shall if the woman die in consequence thereof, be imprisoned in the state prison not more than twenty years and not less than five years, etc. This statute renders all acts ' done and performed upon a woman, pregnant, or supposed to be pregnant, with intent to procure her miscarriage, criminal, unless the same was necessary to preserve her life. “The same”' here refers to the miscarriage and not to the means employed to procure a miscarriage, as is contended by the counsel for the state.
The purpose of the statute is to suppress, by penal inflictions, the evil of procuring miscarriages, and it prohibits the
In order to charge an offence under the statute, it is necessary to negative the exception. State v. Stokes, 54 Vt. 179. An averment that the means employed to procure the miscarriage were not ne'cessary to preserve the life of the woman is not equivalent to an averment that the miscarriage was not necessary to preserve her life, and does not negative the exception ; and the failure to negative the exception renders the indictment fatally defective. In Bassett v. State, 41 Ind. 303, it was held, under a statute making an attempt to .procure a miscarriage a criminal act, unless the miscarriage is
The first and second counts contain the following averment:
“That the performing of said operation and the entering, forcing and thrusting of said instrument into the womb and private parts of her, the said M. Estella Houghton, not then and there being necessary to preserve the life of said M. Estella Houghton.”
It is insisted that the word “operation” refers to miscarriage, and that the averment that t.he operation was not necessary to preserve her life, is equivalent to an averment that a miscarriage was not necessary to preserve her life. The word “said” before the word “operation,” confines the meaning of the latter to some act antecedently charged, and the clause, “ the performing of said operation,” naturally confines the reference to a completed or fully performed act antecedently charged. This is manifest from the pleader’s subsequent use of the words, “ said'operation,” in charging “that thereby the death of M. Estella Houghton was caused.” These last words cannot refer to a miscarriage,- because it is nowhere charged that a miscarriage was produced by the acts charged to have been performed. It cannot, therefore, be held, that, by the words, “said operation,” is meant a miscarriage. If it had been antecedently charged that a miscarriage was procured, the word “operation” might naturally refer to that act. Hence, “said operation” can only refer to some one of the acts antecedently charged to have been performed, with the intent to procure a miscarriage.
None of the counts contain an averment that an operation was performed, and the word “ operation” can have reference to no averment in the indictment, unless it refers to the acts averred to have been done with the intent to procure a mis
Indictment adjudged insufficient and qtíashed \ respondent discharged.
