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Dissenting opinion, per GROVER, J.

under another statute; but such acts are rarely, if ever, so committed. But as a miscarriage, as the word is used in the statute, almost invariably, if not always, produces the death of the child, it follows that acts done with intent to produce such miscarriage are also done with intent to produce the death of the child; and that as an attempt to produce the former includes an attempt to produce the death of the latter, it follows that an attempt to produce the miscarriage of a woman pregnant with a child whose life is within the protection of the section under consideration, renders the party guilty liable to conviction of an attempt to commit manslaughter in the second degree. But, in the present case, although there was evidence tending to show that Ann O'Neill was at the time pregnant with a quick child, yet this fact was not conclusively proved, but was a question proper for the determination of the jury; and the judge having in effect charged the jury that such question was immaterial, and that the defendant might be convicted of an attempt to commit the crime whether such child was quick or not. The question for the determination of the court, is whether the conviction was proper, upon the assumption that such child was not quick. At common law such an attempt, though successful, was not an offence punishable in any way if done with the assent of the woman. (Commonwealth v. Parker, 9 Metcalf, 263 and authorities cited.) Life, says Blackstone (1 Com., 129), is the immediate gift of God; a right inherent by nature in every individual; and it begins, in contemplation of law, as soon as an infant is able to stir in its mother's womb; and then proceeds to show that the unlawful destruction of such a child was a crime at common law. It thus appears that at common law a child, before quickening, was not considered a living being, and, consequently, no safeguards for its life were provided. The question is whether this is so under the statute, or whether a child, before quickening, is not within its protection. In determining this question it is proper to look not only to the common law but to previous statutes relating to the sub

Dissenting opinion, per GROVER, J.

ject. In 1845 (Gen. Laws, p. 285) an act was passed, by the first section of which any person who should administer, etc., to any woman pregnant with a quick child, with intent to destroy such child, was made guilty of manslaughter in the second degree, irrespective of whether such child was thereby destroyed or not. Section 2 of the act made the administering, etc., to any pregnant woman, with intent thereby to produce the miscarriage of such woman, a misdemeanor punishable by fine and imprisonment. The cases provided for in this section were those where the child had not quickened. Thus, both classes were provided for. The offence of destroying a child before quickening being less in degree than the destruction of one after that period. In 1846 (Laws of that year, p. 19) an act was passed, making the administering to any woman pregnant with a quick child, etc., with intent to destroy such child, in case the death of such child or the mother was thereby produced, manslaughter in the second degree. Section 2 of this act repeals section 1 of the act of 1845, but leaves section 22, the residue of the latter act, in full force. It will be seen that all the alteration made in the act of 1845 by that of 1846, was the making the death of the mother or child essential to constitute the crime of manslaughter in the second degree. This alteration shows clearly that the legislature regarded the law as authorizing a conviction for an attempt to commit the crime specified in section 1 of the act of 1846; otherwise the law, so amended, would leave an abortive attempt to destroy a quick child without any punishment; while a similar attempt to destroy one before arriving at that period was left subject to punishment under section 2 of the act of 1845. This brings us to the act of 1869 (supra), upon section 1 of which the indictment in the present case is founded. The language of this section is: Any person who shall administer, etc., to any woman with child, instead of pregnant with a quick child, as in section 1 of the act of 1845, and in the same section of the act of 1846. This change in phraseology clearly makes section 1 of the act of 1869 include cases not embraced in the same sections in

Dissenting opinion, per GROVER, J.

the acts of 1845 and 1846. The latter only include cases of pregnancy with a quick child. The former, by the language used, includes all cases of pregnancy, irrespective of the question whether the child had quickened or not; and clearly makes the death of a child before quickening, by the acts prohibited, constitute the crime of manslaughter in the second degree. The act of 1869 has destroyed all distinction in the offences, placing the destruction of a child before or after quickening upon the same footing. If any additional evidence was required to establish this, it will be found in sections 2 and 4 of the act of 1869. By the latter, section 2 of the act of 1845 and section 1 of the act of 1846 are repealed; they making the procuring of miscarriage, when the child had not quickened, absolutely free from punishment unless embraced in section 1 of the act; and all cases of unsuccessful attempts to procure a miscarriage, not followed by the death of the mother, free from punishment unless the guilty party may be convicted of an attempt to commit the offence specified in section 1 of the act. A construction of the act of 1869, producing such a result, would violate not only the plain meaning of the language used in section 1, but, also, the clear intention shown by the residue of the act. Section 2 of the act of 1869 creates a new offence relating to the same subject, making it a misdemeanor to supply any woman with medicine intended to be used for the purpose of procuring a miscarriage, whether such woman be pregnant or not; thus showing a design to increase the safeguards against this offence instead of relaxing them. Unless a party who administers medicine to a pregnant woman or uses an instrument or other means with intent to procure her miscarriage, and thereby destroy the child, may be convicted of the attempt to commit the crime under the first section, although neither the death of the woman or child is thereby produced, the strange anomaly would be presented that a party, so guilty, would be free from punishment while one supplying medicine to a woman, knowing that it was intended for such use, would be liable to punishment although such medicine was

Statement of case.

never used, or, if used, produced no effect. My conclusion is that the defendant was rightly convicted of the attempt to commit manslaughter in the second degree. The judgment must be affirmed.

All concur for reversal except GROVER, J., dissenting.
Judgment reversed.

FRANK HISCOCK, Executor, etc., Respondent, v. GEORGE W. PHELPS, Appellant, and other Defendants, Respondents

Where real estate is deeded to the members of a copartnership as individuals, the legal effect of the conveyance is to make them tenants in common; but if the copartnership funds have been expended in the purchase, and the land purchased and used for copartnership purposes by agreement to that end, it is to be treated in equity as copartnership assets. So also where moneys of the firm have been expended in improvements upon real estate so deeded, the same effect follows as to its enhanced value. The creditors of the copartnership are entitled to a priority of payment thereout, and the creditors of an individual member of the copartnership are to be preferred to those of another member, and one member to another or to his creditors for any amount paid in by the one, in excess of the share he was bound to contribute, or in excess of his proportion of the debts of the concern.

Where a mortgage is given by one member of a copartnership to secure an individual debt upon his apparent interest as tenant in common in real estate thus purchased and used for copartnership purposes to a bona fide mortgagee without notice of the facts, the latter can repose upon the legal effect of the conveyance, and is entitled to a priority of lien; but if the mortgage is given for a precedent debt, and the mortgagee parts with no valuable thing in reliance upon its security, or if he has knowledge of the facts, he takes his mortgage with notice of the character equity has impressed upon the property, and subject to the equities superior to his own of any and all persons interested in the property.

(Argued March 2, 1872; decided April 2, 1872.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming

SICKELS-VOL. IV. 13

Statement of case.

a judgment in favor of plaintiff entered upon the report of a referee. (Reported below, 2 Lans. 106,)

The action was brought for the foreclosure of two mortgages, originally in the name of James M. Cook; upon his death, the present plaintiff, his executor, was substituted.

In May, 1866, Charles G. Kenyon, John P. Shumway, Peter Mumford and John S. Kenyon, residing at Baldwinsville, Onondaga County, N. Y., engaged, by parol, to enter into the business of manufacturing paper, under the firm name of "C. G. Kenyon & Co."

They agreed to purchase real estate, for the purposes of the business, for the sum of $10,000.

The proposition was to each advance $4,000, pay $4,000 on the real estate, and with the balance, $12,000, improve the property.

Charles G. Kenyon was the owner of two-thirds of the property to be purchased.

Jacob M. Cook owned the other third, and conveyed it to Charles G. Kenyon, John P. Shumway, Peter Mumford and John S. Kenyon, May 11th, 1867.

On the same day, Charles G. Kenyon conveyed an undivided half of the premises to John S. Kenyon, John P. Shumway and Peter Mumford.

Cook's grantees gave him a mortgage for the whole purchase price, $3,333.33. Charles G. Kenyon's grantees gave him a mortgage for $2,666.67.

He gave his son John $4,000, in the real estate, as his share.

They went on and improved the property, each of the parties making advances in unequal sums.

June 1st, 1866, Shumway borrowed of the defendant Phelps, who resided at Mount Morris, $1,000, and on the 1st of April, 1867, $450 more.

Upon the 1st of October, 1867, a mortgage was executed and delivered by said Shumway to said Phelps; to secure him money advanced, $1,450, and $1,000 due to Mrs. Shum

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