182 Ind. 345 | Ind. | 1914
Appellant by an affidavit in three counts, was charged, tried by jury, and convicted of producing an abortion. The affidavit in one count charges the production of abortion by the use of an instrument of kind and character unknown to the affiant. The second count, by the administration of some drug the name of which is unknown to affiant. The third count, by prescribing some drug of unknown name. There was an oral motion to quash each count, but no ground stated on the record for the motion, and it presents no question here. Bohall v. State (1911), 176 Ind. 566, 96 N. E. 576. The only other error properly assigned is in overruling the motion for a new trial, and in this respect the questions presented arise over the form of the verdict, challenges to jurors on their voir dire, for cause, giving and refusing instructions, and alleged newly-discovered evidence.
2.
As to the verdict, it is that appellant is “guilty as charged,” and this is objected to as not being sufficiently specific and contrary to law. We cannot concur in this view. There was but one offense charged, and appellant concedes that it would have been sufficient if there had been added the words, “in the affidavit”. These words would have added nothing to the force, or the specification of the verdict, in view of the fact that but one offense, and no differing grades of that offense, were, or could be charged, or any variation, or gradation, of punishment arise, and neither the trial court nor this court could have any difficulty in understanding it. Colip v. State (1899), 153 Ind. 584, 590, 55 N. E. 739, 74 Am. St. 322; Steele v. Empsom (1895), 142 Ind. 397, 404, 41 N. E. 822; Polson v. State (1894), 137 Ind. 519, 521, 37 N. E. 907. It has been held that where there is a finding of guilty, where there was a charge of differing grades of offense, that a finding of guilty
4.
So far as the jurors were concerned, they were peremptorily challenged, and did not serve on the jury, and appellant had the right of peremptory challenge of one juror remaining to his credit, when the jury was sworn, and his substantial rights were not denied, or prejudiced. Siberry v. State (1896), 149 Ind. 684, 39 N. E. 636, 47 N. E. 458; Voght v. State (1896), 145 Ind. 12, 43 N. E. 1049. Each of the two jurors stated that they had formed an opinion which it would take evidence to remove, if the reports in the newspapers, from which alone their opinions had been formed, were true, but they both stated that they could give defendant a fair trial under the evidence as it might be, and our cases have gone far to declare that such a juror is not incompetent. Siberry v. State, supra; Shields v. State (1897), 149 Ind. 395, 49 N. E. 351.
We are unable to discover from appellant’s brief what' showing, if any, was made as to the alleged newly-discovered evidence upon which a new trial was sought, but the State informs us by its brief, as to the conclusions of the Attorney-General, as to what was shown, and that it was not shown what effort if any had been made before the trial, to learn of, or procure this evidence. The point was immaterial, for the reason that some of the matters alleged as newly-discovered evidence were testified to by a witness in the case, which witness contradicted by affidavit the material allegations of the affidavit of the absent witness, thus presenting an issue of fact for the trial court, upon conflicting affidavits. Grand Rapids, etc., R. Co. v. Oliver (1914), 181 Ind. 145, 103 N. E. 1066.
Error is also predicated on the admission of evidence as to the amount charged the dead woman by appellant for whatever he did, coupled with evidence of the value of the services which he said he had rendered, as tending to show that the charge actually made was for a more serious service than the one claimed to have been rendered. We do not think this was error. It was a circumstance the weight of which was for the jury.
By instruction No. 9 the court charged that it was not necessary to show the particular instrument used in and upon the body or womb of the deceased woman, if an instrument was used, nor that its use was calculated to produce a miscarriage, if one was produced, if the jury believed beyond a reasonable doubt that the defendant did use an instrument which did cause and produce a miscarriage, and that it was not necessary to preserve life. The point made is that the element of intent is omitted. There was evidence -tending to show that both an instrument had been used, and also medicine prescribed. This instruction went to the question of the use of an instrument, and is not to be disconnected from other instructions in the case, by which the jury was instructed fully upon the question of the motive and intent necessary to be shown to convict, in the use of an instrument by which a miscarriage is produced. Here the court was instructing on the question of the hind of instrument not being necessary to be shown, but not as to the question of intent, which was fully covered by instructions given on request of the State, as well as on defendant’s request.
The same point made as to instruction No. 11 is answered by the holding as to instructions Nos. 8 and 9.
The objection to instruction No. 16 that it charges that the jury may take into consideration defendant’s previous good reputation or morality, instead of good reputation for morality, (our italics), is unsupported, as the instruction in the record charges as appellant contends it should be, and not as he contends it was.
The objection that no venue is laid in instruction No. 28 when and where appellant counseled, advised, aided or assisted in producing the miscarriage is not well taken. The instruction need not lay the venue, but it does instruct that if appellant did the things as charged, he would be guilty, and the affidavit lays the venue and time, and contains the proper exception as to necessity for saving life. There was no error in refusing appellant’s requested instruction No. 1, for the reason that the same ground was covered by appellant’s tendered and given instruction No. 4, which goes farther than No. 1, and the court was not required to reiterate it. Straub v. State (1913), 179 Ind. 251, 100 N. E. 754. The same thing is true as to requested instruction No. 2. It was fully covered by No. 4.
Note. — Reported in 106 N. E. 690: As to the crime of causing abortion, see 66 Am. Dec. 82. See, also, under (1) 12 Cyc. 865; (2) 12 Cyc. 693; (3) 12 Cyc. 917; (4) 24 Cyc. 302; (5) 12 Cyc. 904; (6) 12 Cyc. 740, 738; (7) Abortion 1 C. J. §76; (8) 12 Cyc. 877; (9) Abortion 1 C. J. §106; 1 Cyc. 190; (10, 13, 17) 12 Cyc. 654; (11) 12 Cyc. 488, 592; (12) 12 Cyc. 859; (14) Abortion, 1 C. J. §61; (15) 12 Cyc. 615; (16) 12 Cyc. 662; (18) 12 Cyc. 906.