favor of petitioners, and the town brings error. Reversed.

Isham R. Howze and J. B. Willsea, for plaintiff in error. Henry R. Rhone and Goudy & Twitchell, for defendants in er

ror.

STEELE, J. The defendants in error, as petitioners, filed in the county court of Mesa county their petition, setting forth, among other things, that they were the owners of certain property within the limits of the town of Fruita and on the border thereof, and praying that it be disconnected from the town. The county court found for the petitioners and ordered the tracts disconnected. The case is brought here by writ of error. The tracts in question are lots numbered 58, 59, 60, 64, 65, 66, and 67 of Orchard subdivision of the town of Fruita. Lots 58, 59, 66, and 67 contain five acres each, and 60, 64, and 65 ten acres each, and are shown on the accompanying plat, which is a tracing of a portion of the plat of Orchard subdivision filed with the transcript.

FRUITA

OWN SITE

Enc. (2d Ed.) 582. "The ordinary meaning of the term 'lot,' when used with reference to town or city property, is a subdivision of a block according to the map or survey of such town or city." 19 American and English Enc. (2d Ed.) 586.

**

Section 2, c. 106, Acts 1901, found at page 386 of the Session Laws of 1901, under which the proceeding is brought, provides that "such petition shall show to the court that such tract or tracts of land contain in the aggregate an area of twenty or more acres, upon or adjacent to the border of said city or town, and that petitioners are the owners thereof, describing the land; that no part of such area has been duly platted into lots and blocks as a part of or addition to said city or town. The Legislature in tended, it seems to us, to limit the right to disconnect property from the cities and towns of the state to the owners of the unplatted land within the corporate limits. Adopting the definition of lots and blocks as given herein, it appears that the land sought to be disconnected comes within the limitation prescribed by the Legislature. The property sought to be disconnected, being platted into lots and blocks, is not of the character the Legislature contemplated should be disconnected by the decree of the county court. The judgment is therefore reversed.

PABOR AVE

58

60

STREET

19

The orchard subdivision contains about 500 acres, and was included in the town site at the time of the incorporation. It is divided into lots and blocks of various dimensions. The streets of the town proper running east and west, and each alternate street running north and south, are laid out through the subdivision. “A block in a city is a part of the city inclosed by streets, whether occupied by buildings or composed of vacant lots." 4 American and English

AD

STATUTES-CONSTRUCTION EVIDENCE MISSIBILITY-CRIMINAL APPEAL HARMLESS ERROR-MISCONDUCT OF JURORS-TRIAL.

1. The statute permitting a bill of exceptions to be made by affidavits, when the judge refuses or neglects to allow or sign it, does not apply where the judge makes a return, and settles and authenticates a bill of exceptions.

2. Under Mills' Ann. St. Rev. Supp. § 1209, providing that every person who shall maliciously administer or cause to be administered or taken any destructive substance, with intent to cause death, shall be punished, etc., and who shall use or cause to be used any instrument with the intention to procure a miscarriage shall be imprisoned, etc., the word "maliciously" is not applicable to the offense of abortion as therein defined.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Abortion, § 2.]

3. Under Mills' Ann. St. Rev. Supp. § 1209, making the offense of producing a miscarriage murder, if the woman dies, but not expressly making malice an ingredient of the crime, an indictment setting forth the offense in the language of the statute is sufficient, without charging malice.

4. Under Mills' Ann. St. Rev. Supp. § 1209, providing that every person who shall procure the miscarriage of any woman shall be imprisoned, etc., and that if any woman, by reason of such treatment, shall die, such person shall be deemed guilty of murder, unless such miscarriage was procured by the advice of a physician, with intent to save the life of such woman, or to prevent permanent bodily injury to her, an

indictment for causing the death of a woman by procuring a miscarriage is sufficient, though it does not negative the justifications for producing a miscarriage.

5. On a prosecution under Mills' Ann. St. Rev. Supp. § 1209, making the offense of procuring a miscarriage murder, when the woman dies as the result thereof, testimony of the husband of the deceased as to a conversation he had with his wife, on her return from a visit to the defendant, in which she said that defendant entered into an agreement whereby for $50 she produced the miscarriage, and told the deceased that it would be impossible for her to bear a child without risking her life, was admissible.

6. A witness was permitted to testify as to a conversation had with deceased shortly before her death, in which she stated that the defendant used an instrument on her that caused the miscarriage; no foundation having been laid for its admission as a dying declaration. When the question was asked and answered, no objection Defendant's was made by defendant's counsel.

counsel cross-examined the witness, and then moved the court to exclude all the testimony on the ground that it was hearsay, and the motion was taken under advisement by the court. Thereafter the court sustained the motion, remarking to the jury that the testimony was rejected; and, when, the jury were charged, the court specifically instructed them that the entire testimony was to be disregarded by them. Held, that any error in the admission of the evidence was cured.

7. It is not error to refuse to instruct the jury as to the law of manslaughter, on a prosecution under Mills' Ann, St. Rev. Supp. § 1209, declaring a person guilty of murder who uses an instrument on a pregnant woman to cause a miscarriage, if the woman dies by reason of such treatment.

8. On a statement of counsel, unsupported by affidavit, that a newspaper containing a garbled account of the trial had been read by some of the jurors, it is not error, in a criminal case, to refuse to stop the trial and enter on an investigation thereof.

9. Where, on a prosecution for crime, in aid of defendant's motion for a new trial there were some affidavits, including the affidavit of a juror, that a newspaper containing a garbled account of the trial had been in the possession of some one or more of the jury, and read, and contrary affidavits by other jurors were filed, the refusal of the motion was conclusive on appeal. 10. A juror will not be permitted to impeach his own verdict by affidavit.

Error to District Court, Pueblo County; N. Walter Dixon, Judge.

L. Carrie Johnson was convicted of procuring the miscarriage of a pregnant woman, and brings error. Affirmed.

The defendant was tried and convicted for a violation of the second clause of a statute which reads: "Every person who shall, wilfully and maliciously, administer, or cause to be administered, to, or taken by, any person, any poison or other noxious or destructive substance of liquid, with the intention to cause the death of such person, and being thereof duly convicted, shall be punished by confinement in the penitentiary for a term not less than one year, and not more than ten years; and every person who shall administer, or cause to be administered, or taken, any such poison, substance or liquid, or who shall use, or cause to be used, any instrument of whatsoever kind, with the intention to procure the miscarriage of any wo

or

man then being with child, and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years in the penitentiary and fined in a sum not exceeding one thousand dollars; and if any woman by reason of such treatment shall die, the person or persons administering or causing to be administered such poison, substance liquid, or using or causing to be used any instrument as aforesaid, shall be deemed guilty of murder, and if convicted, be punished accordingly, unless it appear that such miscarriage was procured or attempted by or under advice of a physician or surgeon with intent to save the life of such woman or to prevent serious and permanent bodily injury to her." Sess. Laws 1891, p. 122 (3 Mills' Ann. St. Rev. Supp. 1209). The information, omitting formal parts, charges that the defendant "unlawfully, feloniously and wilfully employed a certain instrument in and upon one Pearl Gordon, who was then and there a woman pregnant with child, and did then and there unlawfully, feloniously and wilfully introduce said instrument into the womb of the said Pearl Gordon, with intent to produce and procure a miscarriage of the said Gordon, the defendant then and there knowing that the use of said instrument would accomplish the said purpose, and it not being then and there necessary to produce such miscarriage for the preservation of the life of the said Pearl Gordon, by reason whereof the said Pearl Gordon languishing," etc., "died."

W. B. McNeel, C. W. Bramel, and H. E. Robinson, for plaintiff in error. N. C. Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

CAMPBELL, J. (after stating the facts). When the defendant lodged the record here and applied for a supersedeas, it was discovered that her bill of exceptions, incorporated in the transcript, was so imperfect and incomplete that, under our rules, some of the errors relied upon could not be considered. Acting upon the court's suggestion, her counsel asked and was granted leave to withdraw the record for correction. Upon application below, some of the defects were cured; but the trial judge refused to insert in the bill certain recitals relating to the conduct of the trial, to his treatment of defendant's counsel, his manner of ruling on objections made by the latter, and to certain of his remarks calculated to disparage them in the eyes of the jury, and a general course of conduct on his part throughout the trial which evidenced, as defendant says, a strong feeling against her. Failing in the attempt to get into the bill of exceptions the desired statements, defendant seeks now, by affidavits, to supplement the same, and asks us to regard as incorporated therein matters and things which the affidavits say occurred at the trial, but which the presiding judge vir

tually denies, by refusing, at defendant's request, to insert them. Where, as here, the judge makes a return with respect to such matters, and settles and authenticates a bill of exceptions, the statute permitting a bill to be made by affidavits when the judge refuses or neglects to allow or sign it does not apply. Holland v. People, 30 Colo. 94, 103, 69 Pac. 519. It follows, therefore, that defendant cannot be heard upon some of the objections, relating to the treatment of her counsel by the judge, and to his alleged unfairness to her, on which she strongly relies, because there is nothing in the only properly authenticated record before us on which they rest. This reference is pertinent at the outset, and will serve to explain the absence from the opinion of discussion of some of the questions argued in defendant's briefs. We proceed now to consider the objections which are grounded on the record.

1. The information is assailed upon various grounds. First, it is contended that "maliciously," in the first, applies to the crime defined in the second, clause of the statute, and, since "maliciously," or its equivalent, is not in the information, the pleading is fatally defective. "Maliciously" does apply to the crime defined in the first clause, which consists in the administering of poison with intent to cause death, but is in no sense applicable to the administering of poison, etc., or using instruments, with intent to produce the miscarriage of a woman pregnant with child, which is the crime defined in the second clause. This has been expressly ruled in Dougherty v. People, 1 Colo. 514, 517. The information therefore is not defective for the omission of that word.

2. It is further said that, inasmuch as this statute makes the producing of a miscarriage murder if the woman dies, malice is an essential ingredient thereof, though not expressly so declared therein, because, under our general statute relating to murder, malice is an essential element of every murder, however committed. The proceeding against defendant was not under the general murder statute, but was based upon this particular statute which makes the doing of the act therein prohibited, in a certain contingency, murder (which, of course, is murder of the second degree), and it is sufficient to set forth the offense in the language of the statute, which was done; and proof that the act prohibited thereby was committed establishes the ingredient of malice, even if that element should be held essential.

3. A more serious objection urged is that since this statute contains at least two, and probably three, special grounds of justification for the acts generally prohibited, it is necessary thereunder to negative all these exceptions in the indictment or information, which was not done in this case. That these exceptions do not refer to the first clause is manifest, for that clause defines the offense of administering poison, etc., with intent to

cause death, and it would be absurd, as well as inconsistent, to say that such offense is to be excused for the reasons contained in the proviso; hence we must assume that the General Assembly never intended by one clause of a section to nullify another clause of the same section. It will be observed that the matters of justification are contained in the last sentence of the section, beginning with the word "unless"; and this substantive clause is in the nature of a proviso to the effect that, if it shall appear that the miscarriage was procured in the circumstances therein specified, there is no crime. The defendant contends, and the Attorney General is disposed to concede, that in this proviso or substantive clause there are three distinct justifications for the act prohibited in the antecedent clause: (1) If the act is done by or under the advice of a physician or surgeon; (2) with intent to save the life of the woman; or (3) to prevent serious and permanent bodily injury to her.

The general rule, as usually announced, is that exceptions and provisos in the enacting clause of a statute must be negatived, and such as are not in the enacting clause need not be negatived; the latter being matters of defense. 10 Enc. Pl. & Pr. 495. The rule thus stated is sufficiently precise to cover most of the cases, but we apprehend that the more accurate expression of the doctrine is that only such exceptions and provisos need be negatived as are descriptive of the offense, without reference to the position or location of the same in the statute. In State v. Miller, 24 Conn. 527, it was held that it is immaterial whether the proviso or exception be contained in the enacting or subsequent clause, if it only follow a general prohibition; but, if there be no general prohibition in the description of the offense, then it is only a limited prohibition, and the prosecutor in the latter case must allege the circumstances necessary to show that the thing prohibited has been done. Substantially the same doctrine was announced in the leading case of United States v. Cook, 17 Wall. 168, 21 L. Ed. 538, followed by us in Packer v. People, 26 Colo. 306, 57 Pac. 1087, wherein it was said: "Where a statute defining an offense contains an exception in the enacting clause of the statute which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; but, if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference. When the exception or proviso is in a subsequent substantive clause, the case con

templated in the enacting or general clause may be fully stated without negativing the exception or proviso, as a prima facie casé is stated, and it is for the party for whom matter of excuse is furnished by the statute or contract to bring it forward in his defense." In State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754, the same doctrine is thus expressed: "In saying that an exception must be negatived when made in the enacting clause, reference is not made to sections of the statute, as they are divided in the act; nor is it meant that, because the exceptions are contained in the section containing the enactment, it must for that reason be negatived. * * * The question is whether the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offense. # * * 'It is the nature of the exception, and not its location,' which determines the question. * * The same principle should govern this class of cases which governs other classes, and the exceptions should be negatived only where they are descriptive of the offense or define it; but where they afford matter of excuse, merely, they are to be relied upon in defense. The question is one not only of pleading, but of evidence; and, where the exceptions must be negatived in the indictment, the allegations must be proved by the prosecution, though the proof may involve a negative." In State v. Rupe, 41 Tex. 33, the indictment was under a statute wherein the exception was in a section other than, and following, that containing the enacting clause; and the objection was that the pleading did not negative the fact that the act charged was done by the advice of a physician to save the life of the mother, which was the exception made. The court held it not necessary to negative this exception, since it was a matter of defense on the trial of the accused; citing Jenkins v. State, 36 Tex. 638. Territory v. Burns, 6 Mont. 72, 9 Pac. 432, State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488, and Territory v. Scott, 2 Dak. 212, 6 N. W. 435, contain good discussions of this subject, in line with our conclusion.

Possibly the larger number of cases found in the books are to the effect that under statutes providing that the administration of drugs or use of instruments with intent to produce abortion shall be criminal, unless advised by a physician as necessary to save the mother's life, the indictment or information should allege that the act committed was not within the exceptions. 1 Cyc. 167 et seq., where is found a concise summary of the law of abortion, and a collation of the authorities. State v. Lee, 69 Conn. 186, 37 Atl. 75, announces the rule that, under a statute similar to the one under consideration, exceptions must be negatived in the indictment or information, and the state must establish the truth of the negative averment, and, in the absence of any evidence on the

question, the presumption that the miscarriage was not necessary to save the life of the mother will be sufficient to convict. This decision has been criticised as illogical, because, if the exception must be negatived in the indictment, and proof of the negative made by the state, in the absence of any evidence at all to show that the act was not necessary the defendant ought to be acquitted, instead of convicted under a presumption of law merely. However that may be, we think that, even under the general rule above announced, the exceptions contained in our statute are matters of defense, which must be made to appear by the defendant from the evidence, and need not be negatived in the indictment, or the negative proved by the prosecution. The exceptions are clearly in the nature of a proviso. The offense defined or described in the second clause of the section is entirely complete wholly without reference thereto. Indeed, it was so declared by this court in the Dougherty Case, supra, where it was said by Mr. Justice Bclford that "it is the administering the noxious substance or the use of the instrument with intent to produce miscarriage that makes up the crime." The indictment in that case, based upon the same statute, did not contain a negative of the exception, though no point seems to have been made upon it; and the same observation applies to the Solander Case, infra, which goes to show the understanding of the profession in this state to be that the exceptions are not a part of the description of the offense.

The statute was passed upon the presumption of law, which in turn rests upon the common experience of mankind, that the ability to bear and bring forth children is the rule, and that the necessity of procuring an abortion or miscarriage in order to save the life of mother or child is the rare exception. The prohibition against the act is general, and includes every person; and the exception, which is in a substantive and independent clause at the close of the section, follows not only the complete description of the offense, but the penalty attached thereto. Mr. Bishop, in 1 Bishop's New Criminal Procedure, § 639 et seq., expresses what we consider the doctrine which is clearly applicable to the case before us, and in consonance with our conclusion: "The true view plainly is that, in the absence of controlling language in the statute, if the matter thus referred to is such as ought, on the general principles of pleading, to be alleged by the party assuming the burden of the charge, it should be brought into the indictment by proper negative averments; if not, then no allusion to it need be made." That it was intended that matters constituting the justification for the act done should be made to appear from the evidence, and that it is not necessary to negative them in the information or indictment, but that they are matters of defense to be shown by the de

fendant, are apparent from the nature of the exceptions themselves. While it might be, and generally is, within the power of the prosecution to show by circumstantial evidence that the miscarriage was not pro'duced with the intent to save the life of, or prevent serious or permanent injury to, the woman, it would be almost, if not quite, impossible, unless a defendant himself confesses, to show that the abortion had not been procured or attempted under the advice of a physician or surgeon.

The New York authorities go beyond anything that it is necessary to rule here to save this information. Under chapter 181, p. 509, Sess. Laws N. Y. 1872, which prohibits the use or employment of any instrument with intent to produce miscarriage, "unless the same shall have been necessary to preserve her life or that of such child," etc., it has been held that it was not incumbent upon the state to negative the exception in the indictment, or to prove the negative at the trial. In the New York statute the exception unquestionably was in the enacting clause itself, and, under some of the authorities, would for that reason be a part of the description of the offense; and yet the New York rule is sustained by the weight of authority, which says that, though this exception is in the enacting clause, if it is not in fact a part of the description of the offense, the indictment need not state that the defendant is not within it. Bradford v. People, 20 Hun, 309. The decision in this case was said to be controlled by Fleming v. People, 27 N. Y. 329. The same doctrine was announced in People v. McGonegal (Sup.) 17 N. Y. Supp. 147. This case was affirmed by the Court of Appeals in 136 N. Y. 62, 32 N. E. 616. The question as to the negativing of the exception was not raised in the court of last resort. The doctrine seems to be so well established in New York that no question was there raised concerning it.

If, however, we are in error as to the foregoing, and if the statute requires the pleader to negative all of the exceptions because the description or definition of the offense is incomplete without a reference to them, and that the same are found in the enacting clause itself, and as a part of the description of the offense, still this information, under some authorities, is a sufficient compliance with the requirements of the statute. In Commonwealth v. Sholes, 13 Allen, 554-an abortion case the pleading there considered alleged that the defendant committed the act "unlawfully"; and it was held that "unlawfully" negatives or precludes any inference or possibility that the act was done by a surgeon for the purpose of saving the life of the woman, or under any other circumstances which would furnish a justification. It was said that any unlawful use of an instrument with intent to produce miscarriage is made criminal by

the statute. To the same purport is Commonwealth v. Brown, 121 Mass. 69. Other instances in our own Reports somewhat analogous to the case at bar, wherein the decision was that exceptions in a statute need not be negatived in an information based thereon, are Poole v. People, 24 Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 245; Mitchell v. People, 24 Colo. 532, 52 Pac. 671; Peckham v. People (Colo. Sup.) 75 Pac. 422; Langan et al. v. People (Colo. Sup.) 76 Pac. 1048.

4. The prosecution called as a witness the husband of deceased, who, over defendant's general objection of incompetency, was permitted to testify to a conversation which he had with his wife soon after she returned from a visit to defendant, in which she made declarations to the effect that she had, a short time theretofore on the same day. called at defendant's office, and entered into an understanding or agreement with her whereby, for a consideration of $50, Dr. Johnson produced the miscarriage, and, to use the exact language of the witness, "told her that it would be impossible for her to bear a child without risking her life, and then and there the defendant [the physician] operated on her and fixed her up all right." Counsel strenuously insist that there was error in admitting this purely hearsay testimony. In Solander v. People, 2 Colo. 48-a prosecution for a similar offense under the same statute -a witness was permitted to testify to declarations made by the deceased which involved the defendant. The court, by Hallett, C. J., in an exhaustive opinion, in speaking to this point, after alluding to holdings in New York and Massachusetts that a woman on whom an abortion has been produced is not an accomplice in the commission of the crime, but, rather, a victim of the act, said: "But it is not necessary that she should appear to be an accomplice in order to make her declarations accompanying acts done in furtherance of the criminal purpose evidence against another, who has joined in the unlawful act. She may be, and usually is, a party to the illegal combination to effect the abortion; and, as this is the ground upon which the declarations are admitted, it can make no difference that she is not criminally liable for the act done. In some cases, probably, the woman is an unwilling subject-submitting to, but not actively joining in, the unlawful attempt-and in such cases the community of purpose which alone can make the acts and declarations of one admissible as evidence against his associate in crime may be wanting. But where it appears that the woman not only submits to the unlawful attempt, but actively promotes it, by seeking the aid of others, and eagerly adopting the means suggested to accomplish the crime, it cannot be claimed that she is not a party to the criminal design. If the woman is not technically an accomplice, she may nevertheless conspire with others to produce the