State v. Fitzporter
Supreme Court of Missouri
Appeal from St. Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The first instruction was fatally erroneous. By using the conjunctive “and” instead of the disjunctive “or,” as it appears in the statute, it assumes that it was incumbent upon the defendant, if he committed the abortion, to establish, not only that he acted by the advice of a physician, but also, and, in addition thereto, that it was necessary to preserve the mother’s life, and so the jury must have…
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Appeal from St. Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The first instruction was fatally erroneous. By using the conjunctive “and” instead of the disjunctive “or,” as it appears in the statute, it assumes that it was incumbent upon the defendant, if he committed the abortion, to establish, not only that he acted by the advice of a physician, but also, and, in addition thereto, that it was necessary to preserve the mother’s life, and so the jury must have understood it. The instruction is not in accordance with the statute, or with the authorities. Moody r>. State, 17 Ohio St.…
1Opinion of the CourtSherwood, J.
Omitting the formal parts, the indictment is as follows:
“ That John L. Fitzporter, late of the city of St. Louis, on the first day of December, in the year of our Lord one thousand eight hundred and eighty-six, in the city of St. Louis, aforesaid, with force and arms, in and upon the body of one Della Myers, a woman then and there pregnant with a quick child, did, then and there, wilfully, feloniously, and unlawfully make an assault, and did, then and there, wilfully, feloniously, and unlawfully use and employ in and upon the body and womb of the ■said Della Myers, a certain instrument, the…
2Cited by3 opinions
- State v. SnyderSupreme Court of Missouri · 1904
- State v. AndersonSupreme Court of Missouri · 1923
- State v. GowSupreme Court of Missouri · 1911