State v. Van Houten

37 Mo. 357 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court.

This was an indictment for administering medicine, to produce an abortion and miscarriage, &c. The indictment charges that the defendant unlawfully and wilfully did administer to one Elizabeth Robinson, a woman then and ther.e being pregnant with a child, a large quantity of medicine, with intent thereby to procure abortion and the miscarriage of the said Elizabeth Robinson ; the administering of said •medicine to the said Elizabeth Robinson not being then necessary to preserve the life of the said Elizabeth, &c.

On motion of the defendant, the court quashed the indictment, because it did not state facts sufficient to constitute any offence, and because it did not specify or describe the kind, quantity or quality of medicine alleged to have been used or administered.

The first cause assigned for quashing was too general, and really amounted to nothing. A motion to quash an indictment must distinctly specify the grounds of objection; and unless it does so, it will be entirely disregarded. (R. C. 1855, p. 1176, § 24.)

The second objection is, that neither the kind, quantity or quality of the medicine used or administered is specified or described. The language of the statute is, that “ every physician, or other person, who shall wilfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman,” &c. An indictment is generally good that charges the offence in the words of the statute creating it. The question to be tried is, whether the prisoner administered any kind of medicine to the woman with intent to procure abortion or miscarriage. The law does not. require, any particular kind, quantity, or quality of medicine to be alleged; nor would it be necessary to prove such kind, quantity, or quality, on the trial.

Our statute is similar to the English act of 43d of George II., § 2, and also to the statute of the State of Indiana; and the courts of both have decided that the name of the medicine need not be stated, nor need it be described as noxious. (Rex v. Phillips, 3 Camp. 73; State v. Vawter, 7 Blackf. 592.)

The court erred in quashing the indictment, for the reasons set forth in the motion ; and its judgment will be reversed and the cause remanded.

Judge Holmes concurs; Judge Lovelace absent.