Opinion
No. 27795.
November 11, 1929.
INDICTMENT AND INFORMATION. Indictment charging destruction of unborn child did not charge offense, where it did not charge destruction was not advised by physician ( Hemingway's Code 1927, section 1014).
Indictment charging manslaughter by destroying unborn child held not to charge offense (Code 1906, section 1235; Hemingway's Code 1927, section 1014), where there was no allegation that destruction of child was not advised by a physician, even though it was alleged that defendant's act was unlawfully and feloniously done, contrary to statute.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
R.C. Cowan and W.T. Moore, both of Gulfport, for appellant.
Where an exception in a criminal statute is so incorporated with the substance of that portion of the statute defining the offense as to constitute a material part of the description of the act or omission which constitutes the offense, such exception must be negatived by proper averment of the indictment, and, if this is not done, the indictment charges no offense.
State v. Speaks, 96 So. 176; Kline v. State, 44 Miss. 317; Sullivan v. State, 67 Miss. 346; Rawls v. State, 70 Miss. 739; Dawsey v. State, 100 So. 526.
Indictments on statutes must state all the circumstances which constitute the definition of the offense in the act; they must pursue the precise technical language employed in the statute defining the offense.
Ainsworth v. State, 5 How. 242; Anthony v. State, 13 S. M. 263; Ike v. State, 23 Miss. 525; 14 R.C.L. 188, sec. 34.
J.A. Lauderdale, Assistant Attorney-General, for the state.
An indictment for abortion under section 1014, Hemingway's Code 1927, is not demurrable because it fails to charge that the abortion had not been advised by a physician.
Smith v. State, 112 Miss. 802; Bennett v. State, 100 Miss. 684; Thompson v. State, 54 Miss. 740.
Argued orally by W.T. Moore and R.C. Cowan, for appellant, and J.A. Lauderdale, Assistant Attorney-General, for appellee.
The appellant was convicted of manslaughter under section 1235, Code of 1906 (Hemingway's Code 1927, section 1014), which provides:
"Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, and shall thereby destroy it, shall be guilty of manslaughter, unless the same shall have been advised by a physician to be necessary for such purpose."
The indictment does not allege that the defendant, the appellant here, acted under the advice of a physician in destroying the unborn child, and a demurrer challenging the sufficiency of the indictment for that reason was overruled. The indictment does allege that the defendant's act was unlawfully and feloniously done, contrary to the form of the statute in such case made and provided.
The crime defined by the statute is not the destruction of an unborn child merely, but is the destruction of such a child without the advice of a physician so to do; consequently an indictment therefor is incomplete without an allegation to the effect that the destruction of the child was not advised by a physician. It is true that acting under the advice of a physician appears in the statute in the form of an exception, but, nevertheless, this court, in a long line of decisions in accord with the authorities in other jurisdictions, has held that an indictment charging the commission of the crime defined by such statute must negative the exception therein; otherwise, the offense defined by the statute is not charged. State v. Craft, Walk. 409; Kline v. State, 44 Miss. 317; Thompson v. State, 54 Miss. 740; Barber v. Levy, 73 Miss. 484, 18 So. 797; Bennett v. State, 100 Miss. 684, 56 So. 777; State v. Speaks, 132 Miss. 159, 96 So. 176; Dawsey v. State, 136 Miss. 18, 100 So. 526.
In Smith v. State, 112 Miss. 802, 73 So. 793, 794, it was held that the exception in this statute was negatived by an allegation in the indictment that the act with which the appellant was there charged "was unlawfully and feloniously done." This reason for upholding the indictment would have sustained probably all of those under consideration in the cases hereinbefore cited; certainly it would have the two last cited. The case is not in accord with the authorities, and is therefore overruled.
Reversed and remanded.