Commonwealth v. Railing

Mr. Chief Justice Mekcttb delivered the opinion of the court, In Railing v. Commonwealth, 16 W. N. C., 452, the unlawful acts charged were presented under an indictment of another form. We reversed that judgment for error in admitting certain declarations in evidence. The indictment then charged the defendant with having administered a drug to Annie Foust with intent to produce a miscarriage, and that her death resulted as a consequence of so administering it. That indictment was framed under the 87th section of the Criminal Code of 31st March, 1860. It declares if any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed to be so, any drug, poison or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever, with the intent to procure the miscarriage of such woman, and such woman or any child with which she may be quick, shall die in consequence of either of said unlawful acts, the person so offending shall be guilty of felony, and shall be sentenced to pay a flue not exceeding five hundred dollars, and to undergo an imprisonment by separate or solitary confinement at labor not exceeding seven years. Section 183 of the same Code declares in all cases where a remedy is provided or duty enjoined or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of said Acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such Act or Acts into effect. Thus section 87 took the crime therein specified out of the class designated as murder, and made it a felony of lesser [46] grade, and prescribed the punishment therefor. Hence no penalty therefor shall be inflicted or anything be done in punishment thereof otherwise than as directed by said section. The present attempt is to convict the defendant of murder, on a new indictment, for committing the same acts on the same person, as charged in the former indictment. The punishment prescribed for the lowest grade of murder, is imprisonment by separate or solitary confinement not exceeding twelve years, and for the second offence for the period of his natural life. Thus the statute not onty makes the acts with which the defendant is charged an offence less than murder, but also prohibits as severe a punishment therefor. It may be urged that on an indictment for murder a conviction might be had of voluntary manslaughter. This is undoubtedly true; but that does not help the case. The punishment prescribed for such a conviction is a fine not exceeding $1,000, and imprisonment not exceeding twelve years. Thus the attempt to indict for murder and punish as if murder, the commission of the acts specified which the statute does not make murder, cannot be successful. It follows the learned judge committed no error in quashing the indictment. The conclusion at which we have arrived appears to be in accord with Robbins v. State, 8 Ohio State, 131, and Commonwealth v. Jackson, 15 Gray (Mass), 188. Judgment affirmed.