The defendant was indicted for procuring an abortion. The section of the statute under which the indictment was drawn provides that every person “ who shall willfully administer to any pregnant woman any medicine, drug or substance whatsoever, or shall use or employ any means whatsoever with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall,.upon conviction, be adjudged guilty of a misdemeanor.” The material portions
'The indictment, it will be perceived, fails to negative one of the exceptions contained in the statute defining the offense. The defendant moved to quash the indictment because it did not negative both of said exceptions. This motion was overruled, and the defendant was tried and convicted. A motion to arrest,the judgment for the reasons stated in the motion to quash, was also overruled, and the case comes here by appeal.
The indictment before us is in form like that in the case of the State v. Van Houten, 37 Mo. 557. The circuit court, in that case, quashed the indictment on a motion assigning as grounds therefor, that it did not state facts' sufficient to constitute any offense, and that it did not specify or describe the kind, quantity and quality of med
1. Abortion. All the authorities agree that when the exception constitutes a part of the description of tho offense sought to' be charged, the indictment must negative the exception, otherwise no offense i j charged. State v. Shifted, 20 Mo. 415 ; State v. Sutton, 24 Mo. 377; Commonwealth v. Hart, 11 Cush. 130; State v. Barker, 18 Vt. 195. An indictment which should charge simply that the defendant produced an abortion, would charge no offense under the statute; for abortion is an offense only when it is not necessary, and is not 'advised by a physician to be necessary to save the life of tho mother. For the same reason it would be insufficient to charge only that abortion was produced when it was. unnecessary to save the life of the mother, as it may have been advised by a physician to be necessary to save tho mother’s life, although in fact it was not so necessary; and in that event tho statute declares that the person producing it is guilty of no crime, it is manifest, therefore, that when the exceptions are contained in the clause of the statute defining the offense and constitute a part of the description, the exceptions must be negatived.
It may frequently happen, however, that the burden of proof -as to one or more oi the exceptions contained in a statute defining an offense, may, from the nature of the
2. Jeofails. It is contended, however, on behalf of the State, that inasmuch as the burden, of proof is not on the State as to the negative averment now under consideration, that under the statute of jeofails which declares that “ no indictment shall be deemed invalid * * for want of the averment of any matter not necessary to be proved,” it is wholly unnecessary that the indictment should contain an averment that the abortion was not advised by a physician to be necessary for the preservation of the life of the mother. This argument is, in our opinion, unsound. The statute of jeofails above cited, was intended to apply only to immaterial averments, such as are net necessary constituents of the crime charged, and need not in any way be made to appear. The exception we are considering is a part of tho description of the
It is quite plain to us that the statute was not intended to apply to negative averments the burden of disproving which is on the defendant, and which are to be taken as. true unless disproved, but to immaterial averments which it is unnecessary for the State in any way to establish, by legal presumption or otherwise, as was the case in the State v. Edmundson, 64 Mo. 398. The principle here applied is constantly acted upon in trials under indictments for selling liquor without license. State v. Jaques, 68 Mo. 260. The judgment of the circuit court will be reversed and the cause remanded, with directions to the circuit court to quash the indictment.