State v. Morrow

¶1The opinion of the court was delivered by

¶2The defendant in this case was indicted under the act of 1883 (18 Stat., 547), entitled ‘ ‘An act to amend the criminal law by providing for the punishment of abortion.” The only portions of that act pertinent to the present appeal are sections 1 and 2. Section 1 reads as follows: “That any person who shall administer to any woman with child, or prescribe for any such woman, or suggest to, or advise or procure her to take any medicine, substance, drug or thing whatever, or who shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or procure the miscarriage, or abortion, or premature labor of any such woman, unless the same shall have been necessary to preserve her life or the life of such child, shall, in case the death of such child or of such *230woman results, in whole or in part, therefrom, be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for a term not more than twenty years nor less than five years.” Section 2 is in the following language: ‘ ‘That any person who shall administer to any woman with child, or prescribe, or procure, or provide for any such woman, or advise or procure any such woman to take, any medicine, drug, substance or thing whatever-, or shall use or employ, or advise the use or employment of, any instrument dr other means of force whatever, with intent thereby to cause or procure the miscarriage, or abortion, or premature labor of any such woman, shall, upon conviction thereof, be punished by imprisonment in the penitentiary for a term not more than five years,” &c.

¶3The indictment contained two counts — -the first charging that the defendant “unlawfully did suggest, advise, induce, and procure one Colie Fowler, a single woman, then and there being pregnant with child, to take divers quantities of a certain pernicious and destructive substance, drug or medicine, in the form and shape of pills, with intent to cause or procure the abortion,” &c., and proceeds to allege that by the use of said means the abortion was procured, and that the death of the said Colie Fowler was thereby caused. In the second count the charge is that the defendant “unlawfully did prescribe, procure, and advise one Colie Fowler, a single woman, then and there being pregnant with child, to take divers quantities of a certain pernicious and destructive substance, drug or medicine, in the form and shape of pills, with intent to cause or procure the abortion,” &c.

¶4The case came on for trial before his honor, Judge Wallace, and a jury, when there was much testimony taken, and in the opening argument of the counsel for the defence a plea to the jurisdiction of the court was interposed upon grounds which will hereinafter appear, and after argument thereon the plea to the jurisdiction was overruled, and the case was submitted to the jury under the charge of the judge, which should be incorporated in the report 'of this case, together with his reasons for overruling the plea. The jury having rendered a verdict *231of guilty, and sentence having been passed upon the defendant, he appeals upon the several exceptions set out in the record, which need not be repeated here, but which should likewise appear in the report of the case. We propose to take up these exceptions in their inverse order.

¶51 The twelfth exception imputes error in admitting as evidence, in reply, certain letters purporting to have been written by the defendant. This is manifestly based upon a misconception, for nothing of the kind appears either in the printed “Case” or in the type-written copy of the testimony filed in this court. Indeed, as no allusion was made to this exception in the argument of counsel for appellant, we suppose it was abandoned, but whether abandoned or not, it certainly cannot be sustained, for the reason indicated.

¶62 The eleventh exception complains of error on the part of the Circuit Judge in overruling defendant’s exception to the indictment, upon the ground that the acts charged in the first count are not charged to have been done “feloniously.” Here, also, we are unable to find anything in the “Case” upon which this exception can be based. It does not appear that the Circuit Judge was ever called upon to make, or did make, any ruling upon the subject. Besides, no such exception could be heard .unless taken before the jury were sworn (act of 1887, 19 Stat., 829), and there is nothing to show that the exception was taken at the proper time. Indeed, we presume from the fact that no allusion is made in the argument submitted here to this exception, that it is likewise abandoned, but whether this is so or not, the exception must be overruled.

¶73 The tenth exception is somewhat 'misleading, and for that reason this exception is reproduced precisely as we find it in. the record, with the italics there found: “For that his honor charged the jury, that if they believed, beyond a reasonable doubt, that the defendant procured, or attempted or intended to procure, an abortion by any of the means set out and prescribed in the act on that subject, they must find a verdict of guilty on the first or second count, or generally, as the ease might be; whereas he should have instructed the jury *232that the prosecution was limited in its evidence, and the jury in arriving at their verdict, to the means (and the proof thereof) set forth in the indictment.” The point of this exception, as we understand it, is,«that inasmuch as the statute under which this defendant was indicted contemplates two distinct and different means by which abortion may be caused, viz: 1st, by the use of drugs, and 2d, by the use of instruments involving the application of force; and inasmuch as the indictment charges only the first, no evidence could properly be received tending to show the use of the second; and if received, the jury should have been instructed that they could not find the defendant guilty, if they believed that the abortion was caused, or attempted to be caused, by the use of instruments, involving some degree of force, and not by the use of drugs, as alleged in the indictment.

¶8To make this point available to the defendant, there should have been some request so to instruct the jury, and a refusal to grant such request. But no such request and no such refusal is to be found in the “Case.” The copy of the testimony with which we have been furnished,in addition to the printed “Case,” shows that there was no testimony offered by the prosecution tending to show that the abortion was either caused or attempted by the use of any other means than those set forth in the indictment; and it is a Avell settled rule, that the correctness of a judge’s charge must be tested by its application to the case as made by the pleadings and the evidence. The matter of the use of instruments involving some degree of force, was introduced into the case by the defendant in his cross-examination of the witnesses for the prosecution, and in the examination of the witnesses for the defence, for the purpose, doubtless, of showing that the abortion was caused, or, at least, was more likely to have been caused, by the use of instruments rather than by the use of the means set out in the indictment. It was a pure matter of defence, not embraced in the issue presented by the pleadings; and if the defendant desired that the jury should be instructed as to the effect of such defence, if made out by the evidence, his proper course was to present a request to that effect.

¶9*2334 5 But, in addition to this, the exception does not correctly represent the judge’s charge. He did not say to the jury what he is represented to hare said in that portion of the exception which is italicized. He did not use the word uany,v which is the important word in the exception, necessary to raise the point upon which this exception is based. On the contrary, the judge, after setting out the first section of the act under which the first count in the indictment was framed, and stating what was the charge in that count, proceeded to say: “That is your first inquiry, whether or not this defendant did that. If he did, he is guilty under this act; if he did not, he is not guilty under this first section of the act.” If he did what? Why, certainly, if he did what was charged in the first count of the indictment, viz: cause the abortion by the use of drugs. But the judge did not stop there, for he immediately proceeded to say: “If he did not, he is not guilty.” Could language make it plainer to the jury, that unless the defendant did what was charged in the first count, he could not be found guilty, no matter what else he may have done? So that this analysis shows that the jury were practically instructed, so far, at least, as the first count was concerned, precisely in accordance with such a request as would have been the proper mode of raising the point. And as the jury found a general verdict of guilty, which, of course, embraced the first count, if there was no error, as there evidently was none, in the instruction as to the first count, it would make no practical difference to the defendant, even if there was error in the instruction as to the second-count, which, however, we are not prepared to admit.

¶104 6 On examination of that portion of the charge which relates to the second count in the indictment, we find that the Circuit Judge, after setting out the second section of the act, and pointing out the difference between that and the first section, and declaring, in general terms, what would constitute a violation of section 2, he proceeds to say, that in order to convict the defendant under that section, “you will have to be satisfied, beyond a reasonable doubt, that he attempted to procure an abortion, intended to do it, by the means stated here in the section I have read to you.” This language, *234isolated from the context, would, seem to afford some support for the position contended for by the appellant; but when it is taken in connection with the entire charge, as it must be, under the well settled rule, it is apparent that it does not justify the position of the appellant. For in the very next paragraph we find that the jury, after being told what were the issues which they were to try, were instructed as follows: “If you are satisfied, beyond a reasonable doubt, that either or both of these offences are made out, you will have to convict him according to the degree of offence described in the act and set forth in the indictment” (italics ours). Again, the jury were told: “If you are of opinion, and are satisfied of it beyond a reasonable doubt, that he attempted to procure an abortion, intended to do it, by the means set out here in this act, but that such means did not accomplish his purpose, but that the abortion was procured by other means, to which he was not a party, then you cannot convict him on the first count, but may on the second, if you are satisfied beyond a reasonable doubt.” This followed by the approval and adoption of the solicitor’s first request to charge, as set out in the charge, shows that the judge did not intend to charge, and could not have been understood as charging, that the defendant could be convicted, without the means of procuring the. abortion, or attempting to procure it, being-such as were set out in the indictment. Moreover, there was not the slightest evidence tending to show that the defendant either used or employed, or advised the use or employ - ment, of any instrument involving force, to cause the abortion; and as the well settled rule is that the charge of a Circuit Judge must be understood as applying to the case as made by the evidence, we can not consider the charge here as open to the objection made by the tenth exception.

¶117 Again, even if the jury had believed that the abortion was, in fact, caused by the use of instruments, involving the application of some force, rather than by the drugs taken as alleged in the indictment, and had at the same (time) believed that the defendant had advised the use of such drugs, with intent to bring about abortion, the jury should still have rendered a verdict of guilty under the second count *235of the indictment; for it is quite clear that the second section of the act does not require that, in order to constitute the of-fence there denounced, the means resorted to should prove effective to accomplish the purpose intended. The offence consists in the use of the means mentioned in the act, with the intent to cause abortion, and it is immaterial whether such means effected the purpose intended or not. We are of opinion, therefore, that the tenth exception cannot be sustained.

¶128 All of the remaining exceptions, in different forms, impute error to the Circuit Judge in overruling the plea to the jurisdiction ; but as the second and seventh exceptions seem to imply that it was necessary, in order to constitute the offence charged, that some force or duress of some kind should have been used to induce Colie Fowler to use the means resorted to for the purpose of causing the abortion, we will first consider the point thus made. To dispose of this point, it is quite sufficient to say that the act under which the defendant was indicted plainly does not contemplate any ingredient of that kind in the offence there made punishable in the manner therein prescribed. There is not a word in either section of the act which signifies that the legislature intended that the use of force or duress in any form, was an element in the offence. On the contrary, the act plainly shows that no such element was contemplated as constituting any part of the offence. This is obvious from a mere reading of the act, and no argument can make it plainer. Indeed, this point was not mentioned in the argument.

¶139 The remaining exceptions may be considered together. The question which these exceptions present, is thus stated in the argument of counsel for appellant: “whether the Court of General Sessions for Eichland County, S. C., had jurisdiction to try the defendant for his alleged violation of the statutes of this State, he having been, at the time of the commission of the only overt acts charged upon him, a citizen of, and actually in, another State.” We do not think that this is a precisely accurate statement of the question as it is presented by the record in this case. For there was evidence tending to show that the defendant had had sexual inter*236course with this unfortunate girl, likely to result in pregnancy; that when she discovered her condition and communicated the same to defendant, that he then formed the intention of using-means to cause an abortion; that the intention thus conceived was attempted to be carried out by applying to a physician to know whether the drug which he had procured to effect his purpose would be sufficient to effect his object; and that such drug was taken by the girl at his instance and by his advice. True, he attempted to disguise, what the jury, under the evidence, might well have regarded as his real purpose, by saying to the physician that he had a little lady friend who had missed her regular monthly period, and desired to know what would be the best thing to bring it on ; but his remark to the doctor, that the girl was awfully scared about it, and would not have her condition known for anything- in the world, coming, as it did, from a man who was in no wise related to the girl, and only temporarily resident in Columbia, would have well warranted the jury in concluding that the real object of the defendant was to obtain something that would cause abortion, and that he did procure a certain drug, which the girl used by his advice for the purpose of causing the abortion. All this occurred in the city of Columbia, in this State, and, therefore, it is not correct to say, as is said in the statement of the question, above quoted from the argument for the appellant, that he was at the time of the commission “of the only overt acts charged upon him, a citizen of, and actually in, another State.” Under this view of the case there would be no ground for the plea to the jurisdiction, and this would be conclusive of this appeal, so far as the question of jurisdiction is concerned.

¶1410 In deference, however, to the zeal and ability with which this appeal has been prosecuted, we will not decline to consider the question as it is formulated in the argument of counsel. For this purpose only we will, for the present, disregard the testimony above alluded to as to what occurred in Columbia, and consider the case as if the only “overt acts,” as they are somewhat -incorrectly termed, were committed in the city of Washington, District of Columbia, though we must *237say it is somewhat difficult to separate the intention (which there was evidence tending to show was originally formed in Columbia) from the acts done in Washington in pursuance of such intention. Assuming, however, for the purposes of this discussion only, that there was no evidence of any act done in pursuance of an intention to effect an abortion, except such acts as were done by the defendant in the city of Washington, then if the acts there done were intended to take effect in this State, and did there actually take effect, we still think the court iu this State had jurisdiction of the offence charged. The evidence leaves no doubt that, after the defendant left this State and returned to Washington, he procured from a druggist there certain drugs in the shape of pills, which he sent through the agency of the TJ. S. mail to Colie Fowler, with the advice to use them for the purpose of bringing about an abortion ; that she received the pills so sent, and used them according to the advice given her by the defendant, and that the abortion did take place which resulted in the death of said Colie Fowler. Under this state of facts, the question is whether the courts of this State could take jurisdiction.

¶15There can be no doubt that it is the duty of a State to protect, as far as practicable, the lives and persons of its citizens, and others temporarily resident therein, against unlawful violence or injury, whether the person committing such violence or indicting such injury be a citizen of this State at the time or not. If such person go beyond the jurisdiction after committing the act, or be and remain beyond the limits of the State when the unlawful act is committed, it may be difficult and oftentimes impossible to obtain jurisdiction of the person of the party committing the act, which would be necessary to give jurisdiction ; but jurisdiction of the person and jurisdiction of the subject matter are two entirely distinct and different things. And where, as in this case, the party charged voluntarily returns to this State, and thereby submits his person to the jurisdiction of the courts of this State, we see no reason why he may not be tried and punished for any violation of the personal rights of any of the citizens of this State entitled to the protection of its laws, even though the act by which such violation was caused *238was originally put in motion beyond the limits of the State, provided the effect thereby intended reached the person for whom it was intended while in this State. If the defendant procured the pills in Washington, and transmitted them by mail to the said Colie Fowler, with the advice for them to be taken for the purpose of bringing about an abortion, and she received and took them in this State, in contemplation of law, it was the same thing as if the defendant in person had brought the pills to Columbia and there delivered them to Colie Fowler. For while it is quite, true, as a general proposition, that the principal is not liable criminaliter for the unlawful act of his agent, yet if the act done by the agent is in pursuance of the authority of his principal — done by his authority — the principal is liable.

¶16This doctrine has been expressly recognized and acted upon by the courts of this State, in the case of State v. Anone, 2 Nott & McC., 27, where the owner of a store or shop was convicted of trading with a slave, though the act of trading was done by a clerk in his employment, in the absence of the employer, the evidence being sufficient to show that such trading was authorized by the employer. The same doctrine was also fully recognized in the cases of State v. Borgman, 2 Nott & McC., 34, and State v. Williams, 3 Hill, 94; though in the last two cases the defendants escaped conviction solely on the ground that the evidence was insufficient to show that the employer had authorized or directed the clerk to do the u nlawful act charged. Upon the same principle, it seems to us, that when the defendant procured the pills in Washington and put them in the mail to be delivered to Colie Fowler in Columbia, for the unlawful purpose charged, it was, in contemplation of law, the same thing as if he had there delivered the pills to the woman for whom they were intended in his own proper person. Instead of coming in person to Columbia to deliver the pills, he simply employed the agency of the mail to do the act which be desired to have done, and which was done by his express authority and direction, in this State.

¶17So far as we are informed, there is no authority in this State as to the question of jurisdiction, but authorities elsewhere, *239which, though not binding upon us, are entitled to the most respectful consideration, have been cited to show error in overruling the plea to the jurisdiction. It seems to us that the authorities thus cited do not support defendant’s contention; and, on the other hand, we find authorities elsewhere supporting the views which we have taken, as will be presently shown. It is conceded in the argument for appellant, and properly conceded, as the authorities abundantly support the proposition, that “if one sends an infernal machine from one State to another, or shoots from one to another, and kills a human being, or sends poison from one State to another, to be administered to a person, and the result is the destruction of human life, such offender may be tried in the State where the death happened but the attempt is made by appellant’s counsel to show that this proposition of law applies only in cases where the offence charged is an offence at common law, and does not apply in a case like the present, which is a mere statutory offence. It would unnecessarily protract this opinion to consider whether the crime of abortion was an offence at common law, or is a mere creature of statute — a question which does not seem to be very clearly settled by the authorities — and we will assume for the present that abortion is a mere statutory offence, and proceed to consider whether the proposition above quoted from appellant’s argument is limited to offences at common law, and does not apply to cases like the present, in which, as we have assumed, the offence charged is of mere statutory origin.

¶18Two cases have been cited to sustain the distinction sought to be drawn by counsel for the appellant—State v. Knight, Taylor N. C. Rep., 44, and People v. Merrill, 2 Park. Cr. Rep. (N. Y.), 590. An examination of Knight’s case will show that the facts are not fully reported, and the head note shows that the only point there decided was that: “The legislature of this State cannot define and punish crimes committed in another State,” a proposition which no one will dispute. From reading the case, it would apirear that the defendant was indicted under a North Carolina statute, which recites in its preamble that there is reason to apprehend that evil-disposed persons, resident in the neighboring States, make a practice of counterfeit*240ing bills of credit of the State, and by themselves or emissaries utter or vend the same with an intention to defraud the citizens of this State, and proceeds to enact that all such persons shall be subject to the same modes of trial and, upon conviction, to the same punishment, as if the offence had been committed within the limits of the State. But the case does not show that the defendant was charged with uttering or vending such counterfeit bills, either in person or. by his emissaries, within the limits of the State of Worth Carolina. On the contrary, it may be inferred that the charge was for uttering or vending such counterfeit bills outside of the limits of the State, for the manifest object of the statute was to protect the credit of the State, and there is not a word in it that seems to contemplate that in order to constitute the offence denounced, the circulation of such bills must be within the State. We are unable, therefore, to see what application the case has to the case now under consideration.

¶19In Merrill’s case, the defendant was indicted for a violation of a statute, declaring that any person who shall sell a person of color, who shall have been forcibly taken, inveigled or kidnapped from the State of New York, shall, upon conviction, be punished as therein prescribed. It appeared that the defendant had inveigled a person of color from the State of New York to the city of Washington and there sold him, and it was held that the courts of New York had no jurisdiction, because the offence charged was committed beyond the limits of the State of New York. It will be observed that the gist of the offence charged was the sale of the person falling within the class described in the statute, and as that took place beyond the limits of the State of New York, it, of course, followed that the court of New York had no jurisdiction. The inveigling was no part of the offence charged in the count upon which the case turned, but was nothing more than one of the elements in the description of the person whose sale was forbidden by the section under which that count of the indictment was framed; and there was another section in the same statute which made it a distinct offence to inveigle a person of color from the State with intent to sell him, under which the court said the courts of New *241York would have jurisdiction. We do not see, therefore, how appellant can derive any support from Merrill’s case.

¶20It seems to us that all of the cases cited by appellant’s counsel to sustain the point now under consideration decide nothing more than the broad proposition, which no one will dispute, that the courts of one State cannot take jurisdiction of offences committed in another State; but the question here is whether the offence was, in the eye of the law, committed within the limits of this State. It seems to us that the authorities which we will now cite sustain the view which we have taken, in a previous part of this opinion, that in the eye of the law the offence charged was really committed here, although the defendant Morrow was in the city of Washington, when, through an innocent agent, the IT. S. mail, he transmitted the drugs to Colie Fowler while in this State, with intent to cause the abortion charged, and which, by his advice, were used by her here.

¶21In 1 Bish. Crim. Law, sec. 110, that eminent author says: “The general proposition, therefore, is, that, no man is to suffer criminally for what he does out of the territorial limits of the country. Yet one who is personally out of the country may put in motion a force which takes effect in it; and in such a case he is answerable where the evil is done, though his presence is elsewhere. Thus, if a man, standing beyond the outer line of our territory, by discharging a ball over the line, kills another within it, or, himself being abroad, circulates through an agent libels here, or in like manner obtains goods by false pretenses, or does any other crime in our own locality against our laws, he is punishable, though absent, the same as if he were present.” Counsel for appellant questions this proposition, or rather the illustration given, so far as it implies by the language, “or does any other crime in our own locality against our laws,” that the proposition is applicable to statutory as well as common law offences; and has undertaken to show that all the authorities cited by the author to sustain the text are either civil cases or cases charging common law offences, except the case of Barlshamsted v. Parsons, 3 Conn., 1, which was a qui tarn action. Conceding this to be true, we do not see how this can *242help the appellant, unless some authority can be found which recognizes the distinction sought to be drawn between statutory and common law offences in this respect; and we do not find any such authority, nor are we able to perceive any sufficient reason, for any such distinction. The mere fact that the cases cited by Mr. Bishop to sustain the legal principles which he lays down, happen to be cases of the character claimed by appellant, cannot affect the legal principle, which is substantially this: that a person may commit an offence within this State by putting in motion a force which takes effect here, or by acting through innocent agents here, although the party charged may never have been personally present in this State. To the same effect, see 1 Whart. Cr. Law, §§ 278 and 604. These distinguished text-writers are sustained by numerous cases, some of which we will cite.

¶22In People v. Adams, 3 Denio, 190, affirmed by the Court of Appeals in 1 N. Y. (Const.), 173, the indictment substantially charged the defendant with obtaining money under false pretences, in violation of a statute of the State of New York. The allegation, in substance, was that the defendant, by exhibiting a receipt, purporting to be signed by a forwarding agent in Ohio, for certain produce to be forwarded to certain commission merchants in the city of New York, to such merchants, induced them to accept drafts drawn on them by defendant against such produce, which the commission merchants afterwards had to pay out of their own funds, the receipt exhibited being false and fraudulent. The defendant filed a plea to the jurisdiction, alleging that he was a citizen of Ohio, and resident in that State at the time of the transaction referred to, and never had been in the State of New York. To this plea a demurrer was interposed, and was sustained; the court holding the offence of obtaining money by false pretenses is committed where the false pretenses are successfully used and where the money is obtained, and that the defendant, though absent from the State of New York when the money was obtained by him through innocent agents in that State, employed by defendant, the offence charged was, in the eye of the law, committed by defendant in the State of New York, through his innocent agents, although *243he was absent from the State at the time, and hence the plea to the jurisdiction could not be sustained. This case was elaborately and ably argued by very distinguished counsel, and their arguments, which are fully reported in 3 Denio, present a full review of the authorities.

¶23The same doctrine is recognized in Regina v. Garrett, 22 Eng. Law & Eq., 611, where Lord Campbell, then chief justice, said: “A person abroad may, by the employment as well of a conscious as of an unconscious agent, render himself amenable to the law of England when he comes within the jurisdiction of our courts.” In State v. Chapin, 17 Ark., at page 565-6, it is said: “It is not necessary in all cases that a man should be actually present in this State to make him amenable to our laws for a crime committed here. If the crime is the immediate result of his act, he may be made to answer for it in our courts, though actually absent from the State at the time he does the act, because he is constructively present, or present in contemplation of law.” And again: “If a person absent from, this State commits a crime here, through or by means of an innocent instrument or agent, it seems that the law would regard him as personally present, and hold him responsible for the offence.” This case, as well as the case of People v. Adams, supra,recognize the distinction between a case where a person abroad does an-act here through a guilty agent, and where the same act is done through an innocent agent, or some inanimate agency j for, in the former case, where the act is a felony, the guilty agent must be regarded as the principal felon, and the person abroad who employs him should be regarded as au accessory before the fact, and only punishable where he actually is at the time he incites his guilty agent to do the act here. Hence the cases cited by appellant to sustain such a distinction are not applicable to this case, as there is no pretense that the agency employed by the defendant, Morrow, to transmit the drugs from Washington to Colie Fowler in Columbia, was a guilty agent. To sustain the general doctrine which we have announced, that a person abroad may commit a crime here through the agency of innocent persons here, or inanimate *244instruments, see Rex v. Brisac, 4 East, 164; Noyes v. State, 41 N. J., 418 ; The People v. Rathbun, 21 Wend., at page 534.

¶24The judgment of this court is, that the judgment of the Circuit Court be affirmed.