Trent v. StateTrent v. State
2. Indictment; Demurrers.—The grounds of demurrer examined and it is held that they did not raise the point that the indictment failed to state the time of the commission of the offense so as to enable the court to say whether the trial was under
Brown, J., dissents in part.
Mrs. A. C. Trent was convicted of administering drugs or using instruments for the producing of an abortion, and she appeals. Affirmed.
The indictment is as follows, preferred November 1, 1911:
Mrs. A. C. Trent, whose name is otherwise unknown to the grand jury, did willfully administer to Ruth Eloise Kirby, a pregnant woman, a drug or substance, a particular description of which said drug or substance is to the grand jury unknown, or used or employed an instrument, a particular description of which said instrument is to the grand jury unknown, to procure her miscarriage, the same not being necessary to preserve her life, and not done for that purpose.
The grounds of demurrer were:
Said indictment charges no offense or violation of law. Said indictment charges no violation of the law of Alabama in force and effect at the time the said indictment was returned, for that
BROWN, J.—The appellant was convicted of an offense denounced by
In prosecutions for statutory offenses where no form of indictment is prescribed, it is usually sufficient for the pleader, in framing an indictment, to follow the statutory language, and this rule has been applied to indictments under this section of the Code.—Thomas v. State, 156 Ala. 166, 47 South. 257.
However, where there has been a revision, amendment, or repeal of the statute on which the prosecution is based, with the result that the statute is entirely abrogated except as to offenses committed before its repeal, or where, by the amendatory act, the constituent elements of the offense or the penalty provided is different from that provided in the original statute, and the indictment is preferred before the time necessary to effect a bar under the original statute has elapsed, the time of the commission of the offense is a material element, and must be stated in such sort as to enable the court from the record in the case to apply the law governing the prosecution and fixing the punishment if a conviction results, as well as to meet the requirements of the Constitution guaranteeing to the accused the right “to
While at no time covered by the indictment were the acts charged not an offense, the penalty prescribed by the two statutes is not the same. The statute before its amendment carries as a penalty a fine of not more than $500 and imprisonment in the penitentiary for not less than two nor more than five years, while the statute as amended provides for a fine of “more than five hundred dollars,” without fixing a maximum, and imprisonment in the penitentiary for not less than two nor more than five years.—
It is manifest from these observations that when, as in this case, the indictment covers a period of time when both of these statutes were in force, the court could not say from the record which should be applied. And while it may be that the provision of the amendatory statute providing for a fine of “more than five hundred dollars,” without fixing a maximum, is so uncertain as to render it void (a question we do not decide, but see Johnston v. State, 100 Ala. 32, 14 South. 629), yet this provision could be stricken, leaving the statute complete within itself, carrying as a penalty imprisonment for a term of years.—Harper v. State, 109 Ala. 32, 19 South. 857; Powell v. State, 69 Ala. 13. Yet the penalties for violation of the original and amendatory statutes are different. Another reason the time of the commission of the offense is material and necessary to be averred. Under
If a construction is placed upon the statute that will allow the prospective mother with impunity to procure another to administer the drug or perform the operation, such construction would destroy much of its moral force. We therefore, hold, under the statute as amended, if the pregnant woman knowingly consents to such operation or the administration of such drug, unless she does so under the honest belief that it is necessary to the preservation of her life, she would be guilty of aiding or abetting, and indictable as a principal.—
For the reasons above stated, the time of the commission of the offense was a material element, and the indictment was fatally defective, and the defendant‘s demurrers thereto should have been sustained.
The evidence shows without dispute that, if committed at all, the offense was committed before the statute was amended. The appellant contends that the effect of the amendment was to repeal the statute as it is published in the Code, with the result that this prosecution was not authorized. This would be true but for
Such “general saving clauses [or statute] are not to be regarded as attempts on the part of the Legislature enacting them to curtail the authority of succeeding Legislatures by limiting in advance the effect to be given their enactment, but rather as the substitution of a new rule of construction to be observed by the courts with respect to statutes thereafter enacted.“—36 Cyc. 1231, VII, D, 6, h (1); United States v. Chicago, etc., R. R. Co. (D. C.) 151 Fed. 84, affirmed 162 Fed. 835, 90 C. C. A. 211; U. S. v. Standard Oil Co. (D. C.), 148 Fed. 719.
The statute (
There was evidence authorizing the conclusion that Kirby not only consented that his wife might engage the services of appellant for the purpose of procuring an abortion, but that in doing so she acted as his agent; and although Mrs. Kirby was not criminally liable under the statute then in force, if she acted at Kirby‘s instance in engaging the appellant to procure an abortion, Kirby would be criminally liable as a principal in the first
The charges refused to the defendant were either not correct statements of the law, invasive of the province of the jury, argumentative, or had misleading tendencies, and were well refused.
For the errors pointed out, let the judgment be reversed.
Reversed and remanded.
ON REHEARING.
On the submission of this cause, the appellant, in brief filed at the time, strenuously insisted that the indictment was fatally defective and subject to the demurrers interposed, because it did not state the time of the commission of the offense in such sort as to enable the court to determine from the record whether the prosecution was under
In the application for rehearing the insistence is made that the question was not raised by the demurrers. This is clearly inconsistent with the position taken in brief and argument on submission, and the court will decline to re-examine the queetion on this theory.—Tygh v. Dolan, 95 Ala. 271, 10 South. 837; L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 South. 1001; Travis v. Sloss-Sheffield Steel & Iron Co., 162 Ala. 605, 50 South. 308.
There was no suggestion, either in the court below or here on submission of this case, or in brief filed, that the act approved April 21, 1911, amending
(1, 2) The foregoing expresses the views of the writer; but the majority of the court is of the opinion that the doctrine of estoppel above adverted to and applied in civil cases is not applicable to a criminal case, and that the state is not estopped by the manner in which the case was treated by the Attorney General; that it is the duty of the court to re-examine the record, and, having done so at the instance of the majority of the court, the entire court is of the opinion and holds that the demurrers do not point out the defects in the indictment noticed in the original opinion.
The application is therefore granted, the judgment of reversal set aside, and an affirmance ordered.
Application granted.
BROWN, J., dissenting.