CHAPTER XLIV. OTHER OFFENSES AGAINST MARRIAGE $737. In "Marriage and Divorce."- In the author's work on "Marriage and Divorce," there is a chapter on the "Impediments of Race and Civil Condition," and another on the "Penal Consequences of Irregular Marriage Solemnization." It is not proposed to repeat here what is said there. Still, § 738. Miscegenation. As there stated, some of our states have statutes against the mixing of races by intermarriage, particularly of blacks and whites; and these statutes, even since the abolition of slavery and the accompanying amendments of the national constitution, and the enforcing acts of congress, are within the legislative power of the states. Nor, in general, did such abolition and those amendments and acts interrupt the operation of the prior statutes of this sort. For something of the interpretation of the statutes and the procedure under them, the reader is referred to the cases in the note." § 739. The rest of the subject-is sufficiently discussed in the other work. But the reader may like to see, in a note, a reference to some of the cases. 11 Bishop, Mar., Div. & S., §§ 308- 7 S. R. 261; McAlpine v. S., 117 Ala. 311. 93, 23 S. R. 130.] 21 id., §§ 341-347a. 31 id., §§ 308, 308a; Ex parte Kinney, 3 Hughes, C. C. 9; Ex parte Francois, 3 Woods, 367; Lonas v. S., 3 Heisk. 287. 4 Frasher v. S., 3 Tex. Ap. 263, [30 Am. R. 131;] Francois v. S., 9 Tex. Ap. 144; S. v. Gibson, 36 Ind. 389, [10 Am. R. 42.] 5 Moore v. S., 7 Tex. Ap. 608; Hoover v. S., 59 Ala. 57; Green v. S., 59 Ala. 68; S. v. Bell, 7 Bax. 9, [32 Am. R. 549;] Frasher v. S., supra; Burns v. S., 48 Ala. 195, [17 Am. R. 34,] overruled in Green v. S., 58 Ala. 190, [29 Am. R. 739; Linton v. S., 88 Ala. 216, 6 S. v. Bray, 13 Ire. 289; S. v. Loftin, 2 Dev. & Bat. 31; S. v. McWhinney, 5 Blackf. 364; Smyth v. S., 8 Eng. 696; Bailey v. Fiske, 34 Me. 77; Reg. v. James, Temp. & M. 300, 14 Jur. 940, 19 Law J. (N. S.) M. C. 179, 1 Eng. L. & Eq. 552. 2 Den. C. C. 1; Wyckoff v. Boggs, 2 Halst. 138; S. v. Griffith, 67 Mo. 287; S. v. Wilder, 7 Blackf. 582; S. v. Horsey, 14 Ind. 185; S. v. Pierce, 14 Ind. 302; Com. v. Waterman, 122 Mass. 43; Com. v. Hill, 6 Leigh, 636; S. v. Ross, 26 Mo. 260; Sikes v. S., 30 Ark. 496; S. v. Winright, 12 Mo. 410; Reg. v. Asplin, 12 Cox, C. C. 391, 5 Eng. R. 470; Bonker v. P., 37 Mich. 4. § 740. Why treated as statutory.-Though, as we shall see,' abortion is recognized in some degree as an offense at the common law, practically the prosecutions for it are nearly all upon statutes. Hence it is placed in the statutory division of this series of works. § 741. How chapter divided.—We shall consider, I. The law of the offense; II. The procedure. I. THE LAW OF THE OFFENSE. § 742. Resulting in death.-An abortion which results in the death of the woman,2-or, where the pregnancy has so far advanced that the child passes from her alive, in its death from injuries inflicted in the operation, or from premature exposure to the external world, is common-law murder. But, § 743. Same under statutes.-In some of our states statutes have either made it manslaughter, or an aggravated abortion punishable less severely than murder. But not all the statutes on the subject thus reduce the offense." § 744. Abortion at common law. The causing of an abortion is an indictable misdemeanor at the common law.' There 1 Post, § 744. 2 Crim. Law, II, § 691; Reg. v. Fret well, Leigh & C. 161, 9 Cox, C. C. 153; Com. v. Hersey, 2 Allen, 173; S. v. Moore, 25 Iowa, 128, [95 Am. D. 776;] S. v. Dickinson, 41 Wis. 299. 3 Crim. Law, I, § 328; II, § 691; Reg. v. West, 2 Car. & K. 784, 2 Cox, C. C. 500; Storer & Heard, Abortion, 153; [S. v. Slage, 82 N. C. 653.] 4S. v. Dickinson, 41 Wis. 299; P. v. Olmstead, 30 Mich. 431; Willey v. S., 46 Ind. 363; S. v. Glass, 5 Oreg. 73; [S. v. Emerich, 87 Mo. 110.] 5 Gen. Stats., ch. 165, § 9; Com. v. Brown, 14 Gray, 419; Com. v. Jackson, 15 Gray, 187; Com. v. Adams, 127 Mass. 15. Under the earlier Massachusetts statutes, Com. v. Wood, 11 Gray, 85, 92. In other states, S. v. Harper, 35 Ohio St. 78, [35 Am. R. 596;] P. v. Davis, 56 N. Y. 95. Beasley v. P., 89 Ill. 571. 6 73 Inst. 50; 1 Hale, P. C. 433; Hawk. fore a mere unsuccessful attempt to produce it is thus indictable;1 as, where one administers to a woman a noxious thing with such intent.2 At what stage of pregnancy — (Consent or not).— An act of this sort, whether successful or not, committed without the woman's consent, is also, of course, an aggravated assault. Some have denied that, if she consents, it is indictable at the common law, unless she has arrived at the stage of pregnancy termed quick with child.' And Hale has on this subject the expression "quick or great with child; " and Coke, "quick with child; " but not in connections denying that the offense may be committed at an earlier stage of the pregnancy. Others reject this distinction. "It is not," said Coulter, J., delivering the opinion of the Pennsylvania court, "the murder of a living child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated." This, in principle, seems to be the reasonable and just doctrine. § 745. "Quick with child.”—The meaning of this phrase is commonly understood to be, that the woman has felt the child move; and a distinction between it and "with quick child," once taken by a learned judge, has been discarded." $746. Under statutes, as to quick with child. Our statutes against this offense, with few exceptions," do not in terms require a quicking; and, when they do not, they are not judicially construed to require it. Thus, under the following ex P. C. (Curw. ed.), p. 94, § 16. And see 3 Chit. Crim. Law, 798, 799. 11 Russ. Crimes (5th Eng. ed.), 853. 2 S. v. Slagle, 82 N. C. 653. 3 Com. v. Parker, 9 Met. 263, [43 Am. D. 396;] Com. v. Bangs, 9 Mass. 387; S. v. Cooper, 2 Zab. 52, [51 Am. D. 248;] Smith v. S., 33 Me. 48, [54 Am. D. 607.] 41 Hale, P. C. 433; [P. v. McDow ell, 63 Mich. 229, 30 N. W. R. 68.] 53 Inst. 50. 6 Mills v. Com., 13 Pa. St. 631, 633; followed by the North Carolina tribunal in S. v. Slagle, 83 N. C. 630, 632; [Taylor v. S., 105 Ga. 846, 33 S. E. R. 190.] 'Rex v. Phillips, 3 Camp. 73, 76; Com. v. Reid, 1 Pa. Leg. Gaz. R. 182. 8 Reg. v. Wycherly, 8 Car. & P. 262; and see this case for an interesting note by the reporter, showing, on medical authority, that "the popular idea of quick or not quick with child is founded in error." 9 S. v. Cooper, 2 Zab. 52, 57, [51 Am. D. 248;] and see the authorities there cited; also Rex v. Russell, 1 Moody, 356, 360. See S. v. Smith, 32 Me. 369, [54 Am. D. 578.] 10 Robbins v. S., 8 Ohio St. 131. pressions, the crime may be committed at any time during gestation: "wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, with intent thereby to procure the miscarriage of any such woman; " with intent to cause and procure the miscarriage of a woman then pregnant with child shall administer," etc." And the Vermont court has even held, under a statute similar in terms to these, that it is not essential for the foetus to be alive when the attempt is made. "We think," said Redfield, C. J., "the mother is with child, whether the child be dead or alive, until the actual miscarriage by the expulsion of the foetus," which there is a dictum to the contrary in Massachusetts.' as to 8747. "Noxious thing."-In many of the statutes, one of the prohibited means of abortion is the administering of a "noxious thing." The "thing" must, by construction, be “noxious" to the system, not necessarily in small quantities, but in the quantities actually given. It is not noxious if administered in quantities too small to effect injury of any sort. But, to be within the statute, it need not be capable of bringing about the abortion.' "Poison"-is another word often employed in the same connection. It has been deemed to be a substance capable of destroying life by its own inherent qualities, without acting mechanically.8 "Administer."-To administer the poison or other thing is to cause it to be taken. It may be by forcing it down the 1 Wilson v. S., 2 Ohio St. 319. [And indictment has been sustained as to attempt to procure miscarriage where woman was not even preg. nant. Com. v. Taylor, 132 Mass. 261.] 2 Mass. Stat. of 1845, ch. 27; Com. v. Wood, 11 Gray, 85. The same, in substance, in Iowa. S. v. Fitzgerald, 49 Iowa, 260 [31 Am. R. 148.] 3 S. v. Howard, 32 Vt. 380, 403; [Com. v. Surles, 165 Mass. 59, 42 N. E. R. 502.] 4 Com. v. Wood, supra. 5 Reg. v. Cramp, 5 Q. B. D. 307, 14 Cox, C. C. 401; Reg. v. Cramp, 14 Cox, C. C. 390; S. v. Gedicke, 14 Vroom, 86; Reg. v. Hollis, 12 Cox, C. C. 463; Reg. v. Perry, 2 Cox, C. C. 223; Reg. v. Hennah, 13 Cox, C. C. 547, the head-note to which case seems not to be correct. 7 S. v. Gedicke, supra; Reg. v. Hennah, supra. And see in Com. v. W., 3 Pittsb. 463; [S. v. Morrow, 40 S. C. 221, 18 S. E. R. 853.] 8 P. v. Van Deleer, 53 Cal. 147. 9 Crim. Pro., II, § 645. And see ante, § 225. woman's throat, or by violence compelling her to swallow it.' Or it may be by delivering it to one who receives it into her system voluntarily; having, or not, asked for it. Generally, in our statutes, the expression is "administer and cause to be taken;" and perhaps it is a question not absolutely settled in authority, or one depending on other parts of the statute, whether, under the single word "administer," the defense can be complete before the thing is swallowed.' Intent. The evil intent specified in the statute, or implied from the nature of the case, is an element indispensable to the offense.1 Varying provisions.-The statutes on this subject so vary from one another, and are so changing from time to time, that it becomes specially necessary for the practitioner to study those of his own state, and the adjudications under them." § 748. Attempt consummated.-The offense under many of our statutes is an attempt only; as, "administer, etc., with 1 Blackburn v. S., 23 Ohio St. 146. 2 See the elucidations in Crim. Pro., II, § 645. 3 Ante, § 225; Reg. v. Wilson, 37 Eng. L. & Eq. 605, Dears. & B. 127, 7 Cox, C. C. 190; Reg. v. Farrow, 40 Eng. L. & Eq. 550, Dears. & B. 164; Reg. v. Fretwell, Leigh & C. 161; Reg. v. Isaacs, Leigh & C. 220; Reg. v. Cramp, 14 Cox, C. C. 390; Reg. v. Hollis, 12 Cox, C. C. 463. Under the words, in the New Jersey statute, "administer to her, prescribe for her, or advise or direct her to take or swallow, any poison, drug, medicine, or noxious thing," the indictment need not (see Crim. Pro., II, § 645) aver that the thing was taken or swallowed, nor need this be proved at the trial. "The defendant's guilt," said the learned judge, "is complete by giving the advice with the intent specified in the act, and it is immaterial whether the advice be followed or not." S. v. Murphy, 3 Dutcher, 112, 115.. "Supply or provide."- The words of 24 & 25 Vict., ch. 100, § 59, "supply or provide any poison," etc., do not require it to be taken. Reg. v. Titley, 14 Cox, C. C. 502. 4 Reg. v. Hillman, Leigh & C. 343; Reg. v. Isaacs, Leigh & C. 220; Slattery v. P., 76 Ill. 217; Reg. v. Titley, 14 Cox, C. C. 502; Com. v. Wood, 11 Gray, 85. See Tulley v. Corrie, 10 Cox, C. C. 584, 640; [Powe v. S., 48 N. J. L. 34, 2 Atl. R. 662; Eggart v. S., 40 Fla. 527, 25 S. R. 144.] 5 There have been certainly three (I cannot say how many more) successive English statutes against attempted abortion, in force at different times, the provisions whereof so differ from one another as to require, in some respects, different constructions; namely, 43 Geo. 3, ch. 58, § 1; 7 Will. 4 and 1 Vict., ch. 85, § 6; and the present statute of 24 & 25 Vict., ch. 100, §§ 58, 59. See Crim. Law, I, § 741 and note; Greaves, Crim. Law Acts, 82. Further, as to American enactments, see Abrams v. Foshee, 3 Iowa, 274, [66 Am. D. 77;] Robbins v. S., 8 Ohio St. 131; [Lamb v. S., 67 Md. 592, 10 Atl. R. 208; P. v. Phelps, 133 N. Y. 267, 30 N. E. R. 1012.] |