Trent v. State, 73 So. 834

OF v. The State.] [Trent v. The Trent State.

Procuring an Abortion. Rehearing 1916. December (Decided overruled November 834.) Appeal; Estoppel Law; applicable doctrine 1. Criminal State. —The argument estops party position from that a taken in brief or civil cases application rehearing, opposite position taking or for or different otherwise, appeals; application to criminal is without fact that the briefs for both the the indictment raised state assumed that demurrers to upon applica- state, question estop a certain did not upon taking rehearing, position a ion for that the demurrers a reversal from point. indictment did not raise the Indictment; grounds Demurrers. —The of demurrer examined and it is they point held that time of the whether not raise the failed the indictment to state the did_ say commission of the offense so enable the court the trial was under Sec. Code under or said section as 1911, p. Acts amended Brown, J., part. dissents

Appeal from Jefferson Criminal Court.

Heard before Hon. H. P. Heflin.

(This Supreme cause was reviewed Court on certiorari Appeals, to the Court of parte and the writ was denied. See Ex Trent, 198 Ala. 73 South. 1002. A. administering drugs Mrs. C. Trent was convicted of or

using producing abortion, instruments of an and she appeals. Affirmed. follows, preferred indictment November 1911: Trent, A.Mrs. whose name is otherwise unknown to the grand jury, willfully did administer to Ruth Kirby, Eloise a drug substance,

pregnant woman, particular description drug grand jury said or substance is to unknown, of which instrument, particular employed an description or used grand jury unknown, said instrument is to procure which being miscarriage, preserve the same her purpose. for that not done grounds demurrer were: charges no violation of indictment law. Said Said charges no violation law of Alabama in indictment force returned, time the said indictment was APPEALS COURT v. The State.] preferred under which the indictment April by Legislature approved repealed of the the act was the not in and section of Code was force effect 1911. Said preferred. indictment was Said or at the time said section when act, saving repealed and no said there is was Code saving in said act said or to clause contained prevent pending prosecution. the At time the a defeat of a Legislature preferred approved the was act indictment effect, repealing April in force and said section of the Code. appellant. for William Sadler, Martin, Bell & Allen

Attorney General, G. Assistant Davis, Gen- Harwell eral, for the State. Wilkinson, and Horace BROWN, J . The was convicted of an offense de- Subsequent nounced section 6215 of the Code the alleged offense, commission of the before and the indictment was preferred, amended, the section of Code was the result only specified not appears acts in the statute as crimes, Code are denounced as but other acts of a kindred nature criminal', are penalty made respects and a pre- different some scribed. prosecutions statutory In for offenses where no form in prescribed, usually

dictment is pleader, it is sufficient for the framing indictment, statutory language, to follow the applied this rule been has to indictments under this section of the Code.—Thomas v. 47 South. 257 . However, revision, where amendment, there has been a repeal prosecution based, of the statute on which the is with the abrogated entirely except result that the statute is as to offenses where, by repeal, amendatory act, committed before its provided penalty constituent elements of different provided original statute, from that preferred indictment the time before a bar elapsed, under the statute has the time of the commis- element, sion of the material offense is a and must be stated in such sort as enable the court from record in the case to apply governing fixing the law punish- results, requirements ment if a conviction as well toas meet the guaranteeing right Constitution accused the “to v. The State.] against demand the nature and cause of the action him.” —Bibb While at time acts no covered the indictment were the charged offense, penalty prescribed by the not an two stat- utes is not the same. The statute its amendment carries before penalty imprisonment a fine of not more than $500 penitentiary years, nor than not less than two more five provides as amended for a fine of “more than while dollars,” fixing maximum, imprison- five hundred penitentiary ment than two nor more than five less 1911, p. years. —Acts when, It as in this is manifest from these observations that period of time both indictment covers when of these force, say court from the were in could record statutes may provision applied. And while it be that which should be amendatory providing for a fine “more than of five of dollars,” fixing maximum, a so uncertain as hundred is (a question decide, not see render it void we do but Johnston yet 629), provision 14 could 100 this itself, leaving complete carrying stricken, the statute within years. Harper penalty imprisonment of term as a — Yet the 19 Powell v. amendatory original and penalties statutes for violation reason the time the commission of the different. Another are necessary averred. is material and to be Under section drug upon administered or to whom performed, is whom .6215 woman although by consent, operation par is not the ticeps administering drug person per or criminis with Gaffard, forming operation. C. —Smith 1907, abolishing the Code 4. And section dis principals the fact and before in the between accessories tinction felony, making degrees them in cases of all liable first and second principals, imposing cannot be as as indictments construed not liability indictable either on one who as acces criminal degree. first or second as sory fact or before impose stated, does not crimi Otherwise previous to indictment liable its enact liability on one nal being authorize the princi indictment as ; its sole ment pals rests, responsibility they criminal where upon whom all principals either enactment to its previous liable were degree as accessories before fact. —1 R. C. second first COURT OF APPEALS v. The State.] L., supra; Thompson States, United D. Ann. Cas. The statute imposes responsi- amended criminal bility only upon may drug those who administer the or sub- stance, instrument, upon or use an “aid, abet, advise, all who but prescribe same,” for the drug unless the administration of the or substance or the use preserve of the instrument pregnant the life of the purpose woman. Its manifest is to conception restrain after an unwarranted interference with propagation course of nature in the reproduction of human forced, kind, concede, and “we are when the red-hot vitality germs, female, furnace of two brought male and are together, one, being, that fuse themselves into- a new crowned humanity mentality, true, comes If into life. this be (cid:127) being, day does not the new from the first of its uterine acquire legal and moral pro- status that entitles it to the same guaranteed beings tection as that Indeed, to human in extrauterine life ? greater protection should it not receive a for the reason being that to the nature of a human it adds the condition of utter helplessness, appeal mute, a condition that should sublime, but eloquence manhood, womanhood, all, to the and above to the motherhood, protect of those who can shield and it ? Lives there little, laughing, prattling a man or who assault a woman would ? If babe that be crime from which the coldest-blooded villain recoil, much more a crime to slay would how assault and quietly sleeping impregnable innocent babe what should be an baby fortress —a voice is hushed and cannot be raised whose mercy piteous cry help!” Paper Sanders, or for of Dr. State Alabama, “Physiological Legal Health Officer of Status Utero,” Medical of the Fetus Transactions Association of Ala- bama, 1911, p. 265-272. placed upon the statute

If construction that will allow with, impunity procure prospective mother another to ad-> drug'or perform operation, such minister would construction therefore, destroy hold, moral force. We much of its under amended, pregnant knowingly if the woman statute con operation drug, sdch administration of such sents to that it under honest belief unless she does so guilty aiding preservation her she would of of abet the ting, 1907, principal. 6219; Bridge indictable as § —Code 402; infra, 56, v. 74 South. Jones forth 57 South. v. The State.] If governed statute as amended in the trial of the imposed the law testimony by corroboroating burden on the state of tending

other evidence to connect the defendant with the commission 1907, 7897; of the criminal act.—Code Smith, 111, State v. Rep. 100 Am. St. If, however, original applicable, statute was the state carried no such burden. stated,

For the reasons above the time of the commission of element, awas material and the indictment was fatally defective, and the defendant’s demurrers thereto should have been sustained. dispute that, evidence all, shows without if committed at

the offense was committed before the statute was amended. appellant repeal contends the effect of the amendment was to published the statute as it is in the with the result was not authorized. This would be true but for section 7806 of the Code. “general saving

Such clauses are not to be re [or statute] garded attempts part Legislature enacting on the them authority succeeding Legislatures by limiting to curtail given enactment, the effect advance to be their but rather as the by rule substitution of new of construction to be observed respect

the courts with to statutes thereafter enacted.” —36 Cyc. VII, D, 6, ; (1) h Chicago, etc., United States R. R. (D. C.) 211; affirmed 162 Co. 151 Fed. Fed. A. C. C. (D. C.), 148 Fed. 719. U. S. Standard Oil Co. (section 7806) recognizes authority

The statute succeeding Legislature, by express subject declaration on the act, destroy right proceed, but, in the state to in the declaration, absence of such statute is continued it, right all force as to offenses committed under proceed preserved. City Birmingham state to Baranco, thereunder Huckabee v. State, supra. Bibb v. authorizing Kirby There was evidence the conclusion that might engage only consented that his wife services of procuring abortion, purpose an appellant for the but that agent; although Kirby doing acted Mrs. so she as his force, criminally then in if liable under she acted engaging procure Kirby’s instance abor- at tion, criminally Kirby liable as a would be first OF APPEALS COURT 490 State.) The v. 70, (Johnson State, degree common law v. note; 142 Ala. at South. 897, 132, 4), 182, 1 R. L. 2 L. R. A. [N. S.] § 1907, 6219). (Code under our statute as indictable however, question, Kirby accomplice as to whether was an 596; jury. infra, one for the v. 72 South. was —Moore 77, 532; 86 Ala. Childress South. Ross 124, 775; State, 10 Ala. wsumv. South. Ne charges the defendant were either not correct refused to law, province jury, argu- invasive of statements misleading tendencies, mentative, and were well refused. or had out, judgment pointed let the For the errors reversed. remanded. Reversed and REHEARING.

ON cause, appellant, filed On submission brief time, strenuously fatally that the indictment insisted was subject interposed, defective and to the demurrers it did because state time of the commission of the offense in such sort toas enable the court to determine from the record whether appears was under 6215 of the section Code as 1907, under that section as amended Acts p. response appellant, any In to this contention of suggestion question record, that was not raised on the combating position appel- filed a General brief change wrought contending that the lant amendment as to make the time of the of the of- was not such commission court, disposing question, material. The fense treated that, raised, parties, holding question as did the the ment'wrought amend- change as to make the time of the such commission offense material. rehearing application insistence is made In the clearly question raised the demurrers. This was not argument position taken brief inconsistent submission, queetion decline to court will re-examine the theory. Tygh Dolan, on this Holland, N. R. Co. v. Travis & Co., 162 Iron & Steel Sloss-Sheffield suggestion, either in the court below or no here on There was filed, approved brief act of this submission April amending 6215 of uncon- v. Southern Cotton Oil Co.] [Peterman and, stitutional; language Justice, speak use to the of the Chief ing tardily suggested present “It for the court: time.” —State, Co., rel. ex Martin v. N. R. & However, conceding originally intro that the bill as South. 497. styled, by duced Alabama,” the House was “Be it enacted state form, by passed in appellee, this as contended and was duty, Legislature only right, while it but the was not by inserting in lieu of to amend clerical error session by “Legislature;” be done and this could “state” the word word houses, resorting to the full concurrent action of both anew, having action, introducing legislative it bill routine of House, referring days separate each read three Askew, 172 Ala. regular committees thereof. —Brandon 386, 52 605; Ensley Simpson, South. writer; foregoing expresses but (1, 2) the views opinion that the doctrine of majority of the court the estoppel ap applied in civil cases is to and above adverted estopped is not that the state plicable a criminal Gen case was treated the manner eral; which record, to re-examine duty court it is court, majority of the and, having the instance of done so at opinion holds that demurrers do court is the entire noticed in the indictment point the defects not opinion. out granted, judgment of reversal application is therefore ordered. aside, an affirmance set granted. Application dissenting. J.,

Brown, Oil Co. Cotton v. Southern Peterman Assumpsit. 991.) January 30, (Decided Secondary; defends on the one Evidence; Creditor. —Where Best and given surety, under notice and has by ground is a that he principal, against bring suit sent mail letter the creditor very matter, defend- foundaion of without but is collateral is not written notice letter, notice de- plea, evidence of the contents and produce ant’s it, is not admissible. fendant

Case Details

Case Name: Trent v. State

Court Name: Alabama Court of Appeals

Date Published: Nov 14, 1916

Citations: 73 So. 834; 15 Ala. App. 485; 1916 Ala. App. LEXIS 226

Court Abbreviation: Ala. Ct. App.