intent to procure a miscarriage." But, by construction, it is no less committed though the attempt is successful, the woman actually miscarrying.1 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.2 8749. Persons assisting-may incur guilt, according to the special terms of the statute or the principles of the unwritten law.3 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." 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. 6 Woman's consent in defense.-The consent of the woman, or desire to save herself from disgrace, furnishes no excuse to the perpetrator.? 8 At the common law, and $750. Felony or misdemeanor. by the statutes of Illinois 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. 2 Crim. Law, II, §§ 115-117; Crim. Pro., II, § 148. 3 Com. v. Adams, 127 Mass. 15; Reg. v. Hollis, 12 Cox, C. C. 463; Crichton v. P., 1 Abb. Ap. 467. 54 Barb. 306; P. v. Josselyn, 39 Cal. 393. [The New York statute makes it a crime on the part of the woman. P. v. Meyers, 5 N. Y. Cr. R. 120.] 7 Crim. Law, I, §§ 257-260; Com. v. Wood, 11 Gray, 85; Com. v. Snow, And see Reg. v. Fretwell, Leigh 116 Mass. 47; Reg. v. Wilson, Dears. & & C. 161, 9 Cox, C. C. 152. 5 Reg. v. Cramp, 14 Cox, C. C. 390, 393. "Hatfield v. Gano, 15 Iowa, 177, 178; Dunn v. P., 29 N. Y. 523, [86 Am. D. 319;] Com. v. Wood, 11 Gray, 85, 93; Com. v. Boynton, 116 Mass. 343; S. v. Hyer, 10 Vroom, 598. See B. 127, 7 Cox, C. C. 190. And see S. v. Glass, 5 Oreg. 73; Com. v. Holmes, 103 Mass. 440. [Nor a threat to commit suicide. Hatchard v. S., 79 Wis. 357, 48 N. W. R. 380; P. v. Abbott, 116 Mich. 263, 74 N. W. R. 529.] 8 Holliday v. P., 4 Gilman, 111. II. THE PROCEDURE. § 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,1 and the methods are numerous, the common-law indictment will vary with the multiplied diversities of cases. 8752. 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.3 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. N. E. R. 471; Com. v. Tibbetts, 157 6 S. v. Owens, 22 Minn. 238; Beasley v. P., 89 Ill. 571; Watson v. S., 9 Tex. Ap. 237; Davis v. S., 4 Tex. Ap. 456; Com. v. Snow, 116 Mass. 47; S. v. McIntyre, 19 Minn. 93; Com. v. Brown, 14 Gray, 419; Madden v. S., 1 § 755. Negativing necessity.- Where the statute makes the act an offense unless necessary to save the woman's life, or the like, the indictment must negative such necessity, and in terms which, though they may be general,1 are broad enough to cover the full statutory meaning." 756. Naming drug. Our statutes in general, employing such words as "any poison or other noxious thing,” and the like, do not descend to specify any particular drug, the administering of which shall be punished. Therefore it is held, by those of our courts that have passed upon the question, not to be necessary for the indictment to be more specific,3 and give the name of the noxious drug which, in the instance in allegation, was administered. Still, § 757. Further as to which.-This form of the allegation lies close upon the border line, and it is not certain that all our tribunals will accept it as adequate. The English statutes are in the general terms just stated, and all the forms upon them, which the author has observed, specify the drug; as, for example, "a large quantity, to wit, two ounces, of a certain noxious thing called savin." And so likewise are the forms in analogous English cases. And, in justice to the defendant, it 5 Kan. 340; Com. v. Thompson, 108 Mass. 461; Dougherty v. P., 1 Colo. 514; Com. v. Brown, 121 Mass. 69; S. v. Sherwood, 75 Ind. 15; [Com. v. Tibbetts, 157 Mass. 519, 32 N. E. R. 910; Baker v. P., 105 Ill. 452; Navarro v. S., 24 Tex. Ap. 378, 6 S. W. R. 542; S. v. Crook, 16 Utah, 212, 51 Pac. R. 1001; Scott v. P., 141 Ill. 195, 30 N. E. R. 329; Cave v. S., 33 Tex. Cr. R. 335, 26 S. W. R. 503; Cochran v. P., 175 IIL. 28, 51 N. E. R. 845.] 1 Crim. Pro., I, § 641; [S. v. Sherwood, 75 Ind. 15; S. v. Stokes, 54 Vt. 178.] 2S. v. Meek, 70 Mo. 355, [35 Am. R. 427;] S. v. Sherwood, 75 Ind. 15; Basset v. S., 41 Ind. 303; S. v. Hollenbeck, 36 Iowa, 112; Willey v. S., 52 Ind. 246; Beasley v. P., 89 Ill. 571; [S. v. Leeper, 70 Iowa, 748, 30 N. E. R. 501.] For the general question of de scending, in the indictment, into this sort of particular, see Crim. Pro., I, §§ 566-584, 611, 619, 624, 629; ante, § 440; [S. v. Reed, 45 Ark. 333.] 4 Com. v. Morrison, 16 Gray, 224; Watson v. S., 9 Tex. Ap. 237; S. v. Vawter, 7 Blackf. 592 (referring to Rex v. Phillips, 3 Camp. 73); Shotwell v. S., 37 Mo. 359; S. v. Van Houten, 37 Mo. 357. And see Mills v. Com., 13 Pa. St. 631. 5 Archb. Crim. PL. & Ev. (19th Lond. ed.) 771; Archb. New Crim. Pro. 295; Matt. Crim. Law, 418; Burn, Just., Abortion; Rex v. Phillips, 3 Camp. 73; Rex v. Coe, 6 Car. & P. 403; Rex v. Cadman, 1 Moody, 114; Rex v. Harley, 4 Car. & P. 369; Reg. v. Farrow, Dears. & B. 164; Rex v. Scudder, 1 Moody, 216. In Reg. v. Wilson, Dears. & B. 127,7 Cox, C. C. 190, it does not appear how the form was in this respect. would seem but equitable for the grand jury to say, if they know, what was the drug administered, or, if they do not know, to allege their want of knowledge, whether the strict law requires it or not. Yet the averment of the name of the drug, if made, appears to be, like that of the weapon in homicide and some other similar things,' of a sort only necessary to be proved in substance; so that, if the evidence discloses instead a drug of some other name, yet of the like effects, there will be no variance, a proposition not, perhaps, quite conclusively established on the authorities. 8758. "Cause and procure."-If the statutory intent is "to cause and procure the miscarriage," etc., both verbs, coupled by "and," must be employed in the allegation. It will not do to charge the intent in one count to be to "cause," and in another count to be to "procure." But if the statutory words are "cause or procure," either count, so drawn, will be good. § 758a. By instruments.- The indictment for attempting or effecting a miscarriage by the use of an instrument follows, like the other, the statute; and is otherwise similar in construction. For example, it may allege, if so the statutory terms will be covered, that, at a time and place stated, the defendant did unlawfully use an instrument, a more particular description whereof is to the jurors unknown, by then and there thrusting it into the body and womb of one, etc., who was then and there pregnant with child, with the intent thereby and then and there to procure her miscarriage." 759. Duplicity.- The use of an instrument and the administering of drugs, to effect the one common object, may both be averred in a single count. It is not thereby rendered double." Or the two methods may be set out each in a separate count; and should the proof show that the result proceeded from them combined, and not solely from either, either count will be 1 Crim. Pro., I, §§ 488b, 488c; II, § 514. 2 Rex v. Phillips, 3 Camp. 73; Rex v. Coe, 6 Car. & P. 403. See Carter v. S., 2 Ind. 617. And see and compare, in the supreme court and court of appeals, Crichton v. P., 6 Park. Cr. 363, 1 Keyes, 341, 1 Abb. Ap. 467. 3 S. v. Drake, 1 Vroom, 422. 4 Ante, § 244. 5 Com. v. Brown, 121 Mass. 69; S. v. Dyer, 59 Me. 303; Com. v. Brown, 14 Gray, 419; Com. v. Snow, 116 Mass. 47; [Com. v. Thompson, 159 Mass. 56, 33 N. E. R. 1111.] 6 Com. v. Brown, 14 Gray, 419; P. v. Davis, 56 N. Y. 95, 100, 101. thereby sustained, or the verdict of guilty may be general on both.1 Death following.— Where death follows, under a statute making this sort of killing an aggravated abortion,2 it need not be charged also as murder.3 § 760. Secondly. The evidence: Woman as witness.- The woman is admissible as a witness, within principles explained in another connection. We have seen that, generally in our states, she is not technically an accomplice, whose evidence, therefore, is within the special rule requiring confirmation. But it is by some deemed that, "inasmuch as she was in a moral point of view implicated in the transaction, it would be proper for the jury to consider that circumstance in its bearing upon her credibility; " rendering a caution from the court, to this effect, judicious and proper, and evidence confirmatory particularly appropriate." And some tribunals appear to regard her, as to confirmation, substantially the same as a technical accomplice. Yet, in reason, the difference is wide; for an accomplice swears under the temptation of earning thereby his own immunity, while she does not. She, discloses her own disgrace; and, where no evil motive appears for it, this fact may, in reason, strengthen her credibility. Yet plainly the special temptations of the particular case should be taken into the account, and the attention of the jury may well be directed to them. 10 Wife against husband.- Where a husband is charged with this offense committed, by the use of instruments, on his wife, she may be a witness against him and his accomplices indicted with him; at least, one case so holds. "The offense," said Kent, J., "is clearly one that includes the element of personal violence to the wife; and, whenever that appears, the wife may 1 Tabler v. S., 34 Ohio St. 127. 2 Ante, § 743. 3 Com. v. Jackson, 15 Gray, 187. And see Com. v. Holmes, 103 Mass. 440; [S. v. Baldwin, 79 Iowa, 714, 45 N. W. R. 297.] 7 Dunn v. P., 29 N. Y. 523, [86 Am. D. 319;] Com. v. Boynton, 116 Mass. 343. 8 Com. v. Wood, 11 Gray, 85, 90, 93. 9 Crim. Pro., I, § 1173; Frazer v. P., 54 Barb. 306; Watson v. S., 9 Tex. Ap. 4 Crim. Pro., I, §§ 1019-1021, 1136- 237. And see Com. v. Drake, 124 1172. Mass. 21. Ante, § 749. 10 P. v. Josselyn, 39 Cal. 393. "Crim. Pro., I, §§ 1156–1176. |