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fore a mere unsuccessful attempt to produce it is thus indictable; as, where one administers to a woman a noxious thing with such intent.?

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;"4 and Coke, “quick with child;"5 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,1° 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 [Taylor v. S., 105 Ga. 846, 33 S. E. R.

p 3 Chit. Crim. Law, 798, 799.

190.] 11 Russ. Crimes (5th Eng. ed.), 853. ? Rex v. Phillips, 3 Camp. 73, 76; 2 S. v. Slagle, 82 N. C. 653.

Com. v. Reid, 1 Pa. Leg. Gaz. R. 182. 3 Com. v. Parker, 9 Met. 263, [43 Am. 8 Reg. v. Wycherly, 8 Car. & P. 262; D. 396;] Com. v. Bangs, 9 Mass. 387; and see this case for an interesting S. v. Cooper, 2 Zab. 52, (51 Am. D. note by the reporter, showing, on 248;] Smith v. S., 33 Me. 48, (54 Am. medical authority, that "the popular D. 607.]

idea of quick or not quick with child 41 Hale, P. C. 433; [P. v. McDow. is founded in error.” ell, 63 Mich. 229, 30 N. W. R. 68.] 9 S. v. Cooper, 2 Zab. 52, 57, [51 Am. 53 Inst. 50.

D. 248;] and see the authorities there 6 Mills v. Com., 13 Pa. St. 631, 633; cited; also Rex v. Russell, 1 Moody, followed by the North Carolina tri. 356, 360. See S. v. Smith, 32 Me. 369, bunal in S. v. Slagle, 83 N. C. 630, 632; (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;”I 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 fætus 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," 3 — as to which there is a dictum to the contrary in Massachusetts.

$ 747. 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.

Administer.”— To administer the poison or other thing is to cause it to be taken. It may be by forcing it down the

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I Wilson v. S., 2 Ohio St. 319. (And 86; Reg. v. Hollis, 12 Cox, C. C. 463; indictment has been sustained as Reg. v. Isaacs, Leigh & C. 220, 9 Cox, to attempt to procure miscarriage C. C. 228; (S. v. Gedicke, 43 N. J. where woman was not even preg. L. 86.] nant. Com, v. Taylor, 132 Mass. 261.] 6 Reg. v. Perry, 2 Cox, C. C. 223;

2 Mass. Stat. of 1845, ch. 27; Com. Reg. v. Hennah, 13 Cox, C. C. 547, the v. Wood, 11 Gray, 85. The same, in head-note to which case seems not to substance, in Iowa. S. v. Fitzgerald, be correct. 49 Iowa, 260 (31 Am. R. 148. ]

78. v. Gedicke, supra; Reg. v. Hen38. v. Howard, 32 Vt. 380, 403; nah, supra. And see in Com. v. W., (Com. v. Surles, 165 Mass. 59, 42 N. E. 3 Pittsb. 463; (S. v. Morrow, 40 S. C. R. 502.)

221, 18 S. E. R. 853.] 4 Com. v. Wood, supra.

8 P. v. Van Deleer, 53 Cal. 147. 5 Reg. v. Cramp, 5 Q. B. D. 307, 14 9 Crim. Pro., II, S 645. And see Cox, C. C. 401; Reg. v. Cramp, 14 Cox, ante, $ 225. C. C. 390; S. v. Gedicke, 14 Vroom,



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. 3

Intent.— The evil intent specified in the statute, or implied from the nature of the case, is an element indispensable to the offense.

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. not require it to be taken. Reg. v.

? See the elucidations in Crim. Pro., Titley, 14 Cox, C. C. 502. II, S 645.

* Reg. v. Hillman, Leigh & C. 343; 3 Ante, & 225; Reg. v. Wilson, 37 Reg. v. Isaacs, Leigh & C. 220; SlatEng. L & Eq. 605, Dears. & B. 127, 7 tery v. P., 76 Ill. 217; Reg. v. Titley, Cox, C. C. 190; Reg. v. Farrow, 40 14 Cox, C. C. 502; Com, v. Wood, 11 Eng. L & Eq. 550, Dears. & B. 164; Gray, 85. See Tulley v. Corrie, 10 Reg. v. Fretwell, Leigh & C. 161; Reg. Cox, C. C. 584, 640; [Powe v. S., 48 N. V. Isaacs, Leigh & C. 220; Reg. V. J. L. 34, 2 Atl. R. 662; Eggart v. S., Cramp, 14 Cox, C. C. 390; Reg. v. 40 Fla. 527, 25 S. R. 144.] Hollis, 12 Cox, C. C. 463. Under the 5 There have been certainly three words, in the New Jersey statute, (I cannot say how many more) suc"administer to her, prescribe for her, cessive English statutes against ator advise or direct her to take or tempted abortion, in force at differswallow, any poison, drug, medicine, ent times, the provisions whereof so or noxious thing," the indictment differ from one another as to require, need not (see Crim. Pro., II, § 645) in some respects, different construcaver that the thing was taken or tions; namely, 43 Geo. 3, ch. 58, § 1; swallowed, nor need this be proved 7 Will. 4 and 1 Vict., ch. 85, 8 6; and at the trial. “The defendant's guilt,” the present statute of 24 & 25 Vict., said the learned judge, “is complete ch. 100, SS 58, 59. See Crim. Law, I, by giving the advice with the intent $ 741 and note; Greaves, Crim. Law specified in the act, and it is immate- Acts, 82. Further, as to American rial whether the advice be followed enactments, see Abrams v. Foshee, 3 or not.” S. v. Murphy, 3 Dutcher, 112, Iowa, 274, [66 Am. D. 77;) Robbins v. 115.

S., 8 Ohio St. 131; [Lamb v. S., 67 Md. “Supply or provide."— The words 592, 10 Atl. R. 208; P. v. Phelps, 133 of 24 & 25 Vict., ch. 100, $ 59, “sup- N. Y. 267, 30 N. E. R. 1012.] ply or provide any poison," etc., do

intent to procure a miscarriage.” But, by construction, it is no less committed though the attempt is successful, the woman actually miscarrying. The case is like that of burglary, where the crime consists of breaking and entering with intent to perpetrate a felony; yet it is equally burglary if the intended felony is accomplished.?

$ 749. Persons assisting — may incur guilt, according to the special terms of the statute or the principles of the unwritten law. As to the

Guilt of consenting woman.-In England, the statute of 24 and 25 Vict., ch. 100, $ 58, makes punishable the attempt of a woman with child “to procure her own miscarriage.”4 She may therefore be the accomplice of another person in this crime. But the author has not observed this provision in any of our statutes; and, by reason of their terms, and the particular nature of the offense, the courts in the construction generally regard her as in some degree the victim, and not punishable though she consents.

Woman's consent in defense.— The consent of the woman, or desire to save herself from disgrace, furnishes no excuse to the perpetrator.

$ 750. Felony or misdemeanor.- At the common law, and by the statutes of Illinois 8 and of some of the other states, this offense is misdemeanor. But in some of the states there are forms of it which are felony,- a question which the practitioner can best decide from his local books.

1 Reg. v. Wilson, Dears. & B. 127; Solander v. P., 2 Colo. 48; Frazer v. P., Com. v. W., 3 Pittsb. 463.

54 Barb. 306; P. v. Josselyn, 39 Cal. 2 Crim. Law, II, SS 115-117; Crim. 393. [The New York statute makes Pro., II, § 148.

it a crime on the part of the woman. 3 Com. v. Adams, 127 Mass. 15; Reg. P. v. Meyers, 5 N. Y. Cr. R. 120.] v. Hollis, 12 Cox, C. C. 463; Crichton ? Crim, Law, I, SS 257-260; Com. v. v. P., 1 Abb. Ap. 467.

Wood, 11 Gray, 85; Com. v. Snow, 4 And see Reg. v. Fretwell, Leigh 116 Mass. 47; Reg. v. Wilson, Dears. & & C. 161, 9 Cox, C. C. 152.

B. 127, 7 Cox, C. C. 190. And see S. v. 5 Reg. v. Cramp, 14 Cox, C. C. 390, Glass, 5 Oreg. 73; Com. v. Holmes, 103 393.

Mass. 440. [Nor a threat to commit 6 Hatfield v. Gano, 15 Iowa, 177, suicide. Hatchard v. S., 79 Wis. 357, 178; Dunn v. P., 29 N. Y. 523, [86 48 N. W. R. 380; P. v. Abbott, 116 Am. D. 319;] Com. v. Wood, 11 Gray, Mich. 263, 74 N. W. R. 529.] 85, 93; Com. v. Boynton, 116 Mass. 8 Holliday v. P., 4 Gilman, 111. 343; S. v. Hyer, 10 Vroom, 598. See


$ 751. Order of discussion.- We shall consider, first, the indictment; secondly, the evidence.

First. The indictment:

At common law.— As the offense may be either the substantive procuring of an abortion or the attempt to produce it,' and the methods are numerous, the common-law indictment will vary with the multiplied diversities of cases.

$ 752. Attempt.- The indictment for the attempt may charge, for example, that, at a time and place specified, the defendant maliciously administered to and caused to be taken by a woman named, she being then and there pregnant with child, divers large quantities of deadly, etc., with intent then and there to cause her miscarriage, and the premature birth and distruction of the child whereof she was so pregnant. The objection, made in one case, that the allegation of the intent should be " to cause and procure the miscarriage and abortion of the child,” instead of the pregnant mother, was overruled." And,

$ 753. Quick with child.- In a state where the courts hold that, to constitute this common-law offense, the woman must be, not merely pregnant, but quick with child, this matter also must be averred."

$ 754. Under statutes.- In the multiplicity of our statutory provisions, the leading rule for the pleader is to

Follow the statute.-- This rule is specially safe, and in most instances sufficient, in the various forms of the offense now under consideration. Rarely will the allegations require expansion beyond the statutory terms.


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1 Ante, & 744

N. E. R. 471; Com. v. Tibbetts, 157 2 As to whether the name of the Mass. 519, 32 N. E. R. 910; Com. v. drug must be given, see post, SS 756, Noble, 165 Mass. 13, 42 N. E. R. 328; 757.

Com. v. Surles, 165 Mass. 59, 42 N. E. 3 Mills v. Com., 13 Pa. St. 631. Com. R. 502; Eckhardt v. P., 83 N. Y. 462, pare this case with P. v. Lohman, 2 38 Am. R. 462.] Barb. 216.

6 S. v. Owens, 22 Minn, 238; Beasley * Ante, $ 744

V. P., 89 Ill. 571; Watson v. S., 9 • Com. v. Bangs, 9 Mass. 387; Com. Tex. Ap. 237; Davis v. S., 4 Tex. Ap. v. Parker, 9 Met. 263, [43 Am. D. 396. 456; Com. v. Snow, 116 Mass. 47; S. Contra, S. v. Emerich, 13 Mo. Ap. 492; v. McIntyre, 19 Minn. 93; Com. v. Com. v. Follansbee, 155 Mass. 274, 29 Brown, 14 Gray, 419; Madden v. S., 1

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