aforesaid did unlawfully, wilfully, feloniously, and negligently place, keep, and allow to remain the person of the said Cora Reinhart in an offensive and unclean bed, and in offensive and unclean clothes, and in a filthy room, filled with vile, unhealthy, and poisonous atmosphere, and said room, clothes, and bed and the person of the said Cora Rein period aforesaid, occupied the relation of | aforesaid, and during the entire period physician and surgeon to the said Cora Reinhart. And he, the said Charles W. Power, did then and there during the period aforesaid, as such physician and surgeon, willfully, feloniously, and unlawfully neglect the said Cora Reinhart, and did then and there wilfully, feloniously, and negligently cause the person of the said Cora Reinhart to become, and did allow the same to remain, ex-hart then and there being filthy, vile, and ternally filthy and covered with vile and poisonous substances, and internally poisoned and inflamed and filled with poisonous and filthy matter and discharges, and did then and there unlawfully, wilfully, and feloniously neglect, fail, and refuse to cleanse the person of the said Cora Reinhart or to remove therefrom the poisonous discharges parently under this theory, that one who gives medicine to a woman, or uses instruments upon her, with a view to procure an abortion, whereby she is killed. is guilty of murder; though the original intent, had it succeeded, would not have been a felony, but only a great misde meanor. IV. Grade or degree of the crime. a. At common law. The general rule, at the common law, was that the commission of an abortion upon a woman when her death ensued therefrom was regarded as murder. State v. Dickinson, 41 Wis. 299; State v. Smith, 32 Me. 369, 54 Am. Dec. 578; People v. Sessions, 58 Mich. 594, 26 N. W. 291. In Worthington v. State, 92 Md. 222, 56 L. R. A. 352, 84 Am. St. Rep. 506, 48 Atl. 355, however, it was held that the crime of abortion was a misdemeanor only at common law, and that, therefore, causing the death of the mother in attempting to cause an abortion on her would be manslaughter only. poisonous as aforesaid, by, through, and on account of the aforesaid neglect of the said Charles W. Power, and the aforesaid miscarriage, unlawfully and feloniously produced upon the person of the said Cora Reinhart by the said Charles W. Power as aforesaid, and by the acts and things aforesaid, the said Charles W. Power did then and there unan attempt to commit an abortion upon her is murder in the second degree, where the statute provides only that deliberate, premeditated murder, and murder in the commission of, or attempt to commit, arson, rape, robbery, or burglary, shall be murder in the first degree. State v. Leeper, 70 Iowa, 748, 30 N. W. 501. And where an abortion is sought to be brought about by the use of instruments and drugs, and death results, and an abortion is not necessary to save the life of the woman, the act constitutes the crime of murder in the second degree under the statutes of Idaho; and an instruction that such acts constitute manslaughter is erroneous. State v. Alcorn, 7 Idaho, 599, 64 Pac. 1014. And death produced by procuring, or attempting to procure, an abortion, unless the same be necessary to preserve the woman's life, is murder in the second degree in Delaware. State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312. So, under the Illinois statute, any person who attempts to produce a miscarriage of a pregnant woman, and thereby causes her death, is deemed guilty of murder. Earl v. People, b. Under general statutes a8 to degree of 73 Ill. 329. homicide. 1. When act is dangerous to life. Under general statutes fixing the grade of different classes of homicide, homicide in the commission of, or attempt to commit, an abortion, though committed by means dangerous to life, not being with premeditated malice afore thought, usually falls within the class of murder in the second degree, and this whether it is regarded as a homicide in the commission of an unlawful act, or a homicide committed through the use of acts or agencies dangerous to human life; but, when committed by dangerous means, the crime is murder, as distinguished from manslaughter. Thus, if a woman is with child, and anyone gives her a potion to destroy the child, and she takes it, and it kills her, this is murder at common law, and is, therefore, murder under the Pennsylvania statute, but cannot be regarded as exceeding murder in the second degree, unless there exists in the perpetrator an intent, as well to take away the life of the mother, as to destroy the offspring. Com. er rel. Chauncey v. Keeper of the Prison, 2 Ashm. (Pa.) 227. The killing of a human being with malice in And the employment of an instrument with intent to destroy a chiid of which a woman is pregnant, and the destruction of the child, constitute a felony under the Maine statutes; and, if the death of the mother results, the offense is murder. Smith v. State, 33 Me. 48, 54 Am. Dec. 607. But while the death of a woman, occasioned by an abortion or an attempt to effect an abortion, may be murder in Texas, it is not, per se, murder in the first degree if the accused did not intend to kill the deceased, the intent being a necessary element of murder in the first degree, and abortion not being one of the offenses mentioned in the Code in the perpetration of which a killing would be murder in the first degree; and to sustain a charge of murder in the first degree for a killing in the commission of an abortion the state must establish the fact that the killing was upon express malice. Ex parte Fatheree, 34 Tex. Crim. Rep. 594, 31 S. W. 403. See also State v. Moore, 25 Iowa, 128, 95 Am. Dec. 77, supra, III. a. 2. When not likely to cause death. Where an abortion is committed with no in lawfully and feloniously inflict upon the person of the said Cora Reinhart certain mortal injuries, the same being the acts and things aforesaid, by and on account of which said mortal injuries, the same being the unlawful acts of the said Charles W. Power, the said Cora Reinhart, in the county and state aforesaid, on or about the seventeenth (17th) day of December, 1898, died. the said defendant aforesaid, thereby conmitting the crime of manslaughter, contrary to the statute in such case made and provided." The information was founded upon § 7042 of the statute (Ballinger's), which provides: "Every person who shall unlawfully kill any human being without malice, express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, shall be deemed guilty of manslaughter." Another section of the statute (§ 7068. Id.) makes it an offense for any person to administer to any pregnant woman whom he supposes to be pregnant any medicine, drug, or substance whatever, or to use or employ any instrument or other means on her per "Wherefore, this informant herewith informs and charges that the said Charles W. Power, in the county and state aforesaid, on or about the said seventeenth (17th) day of December, eighteen hundred and ninetyeight (1898), did unlawfully and feloniously slay and kill the said Cora Reinhart, then and there a human being, involuntarily, but in the commission of the unlawful acts of tent to inflict serious injury upon the woman, | demeanor under the Maine statute; and, if the and in such way that it is not, per se, likely to so result, but, through negligence in the operation, death does ensue, it is manslaughter only. Peoples v. Com. 87 Ky. 487, 9 S. W. 509. And one who uses an instrument upon another for the purpose of procuring an abortion, and causes her death thereby, contrary to his wish and expectation, the instrument being not necessarily dangerous to life, is not guilty of murder, but is guilty of voluntary manslaughter. Clark v. Com. 111 Ky. 443, 63 S. W. 740. And an indictment charging the administering of noxious drugs and the use of instruments for the purpose of procuring an abortion, from which the death of the female resulted, not alleging that the act was accompanied with an intent to cause such death, or with any other, or ulterior intent than the one specified, charges an offense not above the degree of manslaughter, or a felonious homicide resulting from the perpetration of an unlawful act, not of itself felonious. State v. McNab, 20 N. H. 160. And an information for a homicide resulting from an abortion does not warrant a convic tion of murder in the second degree, where it does not allege an intent to kill the party upon whom it was performed, or even an intent to kill the child; since an intent to kill is an essential ingredient of murder in the second degree. State v. Young, 55 Kan. 349, 40 Pac. 659. To produce an abortion upon a woman, however, is necessarily to endanger her life to some extent; and a charge in a prosecution for a homicide caused by procuring an abortion, that the accused wiifully, feloniously, and with malice aforethought killed her by such means, is sufficient at least to constitute a charge of manslaughter. Wilson v. Com. 22 Ky. L. Rep. 1251, 60 S. W. 400. The killing of another, in an act, though not in itself dangerous to life, but which results in death contrary to the will and design of the doer, when committed in procuring, or attempting to procure, an abortion, is voluntary manslaughter. Clark v. Com. 111 Ky. 443, 63 S. W. 740. And the employment of means to procure a miscarriage with intent so to do, as distinguished from the employment of instruments, with intent to destroy an unborn child, and the procuring of such miscarriage, constitute a mis death of the mother is occasioned thereby, the offense is manslaughter. Smith v. State, 33 Me. 48. 54 Am. Dec. 607. And by N. Y. Laws 1846, chap. 22, § 1, it is manslaughter to administer drugs to a pregnant female with intent to destroy the child. in case the death of such child is thereby produced. Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340. So, in Illinois, the act of a person in produc ing an abortion on another, in consequence of which a sickness ensues resulting in death, constitutes the crime of manslaughter. Yundt v. People, 65 Ill. 372. And in England one who delivers to another drugs calculated to cause an abortion, for the purpose of causing it, with a view that the person to whom they are delivered shall take them, and that an abortion shall be caused, may be convicted of manslaughter, where the person to whom they are delivered dies in consequence thereof. Reg. v. Farrow, Dears. & B. C. C. 164, 3 Jur. N. S. 167, 5 Week. Rep. 269. But where an abortion resulting in death is manslaughter on the part of the person causing it, it is voluntary, and not involuntary, manslaughter. Peoples v. Com. 87 Ky. 487, 9 S. W. 309. And see Clark v. Com. 111 Ky. 443, 63 S. W. 740, supra. c. Under special statutes as to abortion. As a general, though not universal, rule, special statutes as to abortion and resultant death make it or them a special statutory crime, governed only by the provisions of the act, and excluded from the purview of general statutes grading the offense of homicide, and of the rules of construction applicable thereto, as well as from the rules of the common law. This is the doctrine of STATE V. POWER. And what would have been embraced within the technical offense of murder at common law in causing the death of a woman in an attempt to procure an abortion has, by force of Mass. Stat. 1845, become a statutory offense, dis| tinguishable from murder, and punishable by milder punishment. Com. v. Jackson, 15 Gray, 187. And the offense of killing a woman by administering medicine to her with the intent to procure an abortion is specially provided for by the Ohio statute of 1834, relating to that sub son, "thereby to procure the miscarriage of crime of involuntary manslaughter. We such woman," unless the same is necessary cannot think this contention sound. The to preserve her life. It is first contended statute, it will be noticed, prescribes a punthat the trial court erred in refusing to sus- ishment for doing these specific acts, withtain a demurrer to the information. The out regard to the effect such acts may have appellant calls our attention to the sections had upon the person operated upon. The of the statute above cited, and argues there- crime is completed when the prohibited acts from that, inasmuch as the latter makes it are committed, and their effect is not made a substantive offense, punishable as such, a material inquiry. Had the statute gone for any person to administer drugs to, or farther and made a death resulting from use instruments upon, a pregnant woman for them a substantive offense, to be punished in the purpose of procuring her miscarriage, the manner therein prescribed, it might be such acts must be punished in the way the contended with some force that a person statute points out, under an indictment or committing the acts causing the death information charging one or more of these would have to be informed against under specific acts alone, and cannot, therefore, be the statute and punished as the statute dithe unlawful acts which were intended to rects. But as the legislature has made the be included within the statute defining the acts punishable as acts, without reference to ject; and, though the person administering it ful act. Montgomery v. State, 80 Ind. 338, had knowledge of its poisonous or deadly qual- 41. Am. Rep. 815. ity, it would not be murder in the first degree where he did not intend to kill her; that statute making the unlawful act the gist of the offense, and the consequential death simply a descriptive circumstance, while the act of 1835, with relation to murder, makes the killing the gist of the crime, and the unlawful means and object simply distinctive matters of description. Robbins v. State, 8 Ohio St. 138. And though causing the death of a woman in the commission of, or attempt to commit, an abortion upon her is a killing done while the slayer was in the commission of an unlawful act, that unlawful act, when producing death, is a distinct offense, and must be pun ished as such under S. & S. Ohio Stat. 272, and not as manslaughter; but, where the indictment lacks the averment necessary under that statute, that death was occasioned by means used to procure an abortion, the crime does not come under that act, and the indictment may be upheld as one for manslaughter. State v. Barker, 28 Ohio St. 583. So, a charge for causing the death of a woman, brought under N. Y. Laws 1872, chap. 181, § 1, providing that any person procuring, or attempting to procure, or advising the procurement of, an abortion, either by the use of medicines or instruments upon any woman, shall, in case of her death or that of her child, be guilty of a felony, is not a charge of homicide in any degree, the death of the deceased not being a necessary ingredient of the crime. People v. Davis, 56 N. Y. 96. And in Indiana, if death results from an unlawful attempt to procure an abortion, the prosecution there or should be brought under Ind. Rev. Stat. 1881, § 1923, providing that whoever prescribes or administers to any preg nant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman, or with like intent uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be fined not more than $500 nor less than $50, and be imprisoned in the state prison not more than fourteen, nor less than three, years, and not for homicide in the performance of an unlaw And under Pa. Crim. Code March 31, 1860, § 87, declaring that, if any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed to be so, any poison or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever with intent to procure the miscarriage of such woman, and such woman, or any child with which she may be quick, shall die in consequence of either of the said unlawful acts, the person so offending shall be guilty of felony, and shall be punished by a fine not exceeding $500, and sentenced to undergo an imprisonment by separate or solitary confinement, at labor, not exceeding seven years, the crime therein specified is taken out of the class designated as murder and made a felony of a lesser grade, and no penalty there for can be inflicted, and nothing cau be done in punishment thereof, otherwise than as directed in that section; the accused in such a case not being liable to an indictment for murder. Com. v. Railing, 113 Pa. 37, 4 Atl. 59. So, the subordinate felony defined by N. D. Rev. Code, § 7177, with relation to procuring abortions, is foreign, and not generically con nected with the offense of murder in the second degree, as defined by N. D. Rev. Code, § 7058, subd. 3, declaring that homicide is murder when perpetrated without any design to effect death, by a person engaged in the commission of a felony; and such subordinate offense is not necessarily included in the commission of the crime of murder in the second degree. State v. Belyea, 9 N. D. 353, 83 N. W. 1. Ky. Gen. Stat. chap. 29, art. 4, § 2, however, providing that any person who shall wilfully strike, stab, thrust, or shoot another, not designing thereby to produce or cause his death, which is not done in sclf-defense, or in an attempt to keep and preserve the peace, or in the lawful arrest of, or attempt to arrest, a person charged with a felony or misdemeanor, or in doing any other legal act so that the person struck, stabbed, thrust, or shot shall die within six months next thereafter, shall be confined in the penitentiary not less than one, nor more than six, years,-was not intended to meet a case of destroying life in the commission of an abortion, and does not repeal their consequences, we cannot think it was intended to exempt a person causing the death of another by these means from being informed against and punished under the general statutes relating to unlawful homicides. the following question: "I will ask you if your sister, Cora Reinhart, made any statement to you at the time she was in the act of going and preparing to go to Spokane from Rathdrum, where she was going, and her purpose in going." This was objected It is next contended that the court erred to by the appellant as incompetent, irrelein admitting certain testimony. It ap- vant, and immaterial. The court overruled peared that the deceased resided near Rath- the objection, and the witness answered: drum, in the state of Idaho, and that im- "She said she was in trouble, and was going mediately preceding the time of her meeting to Spokane to be treated by Dr. Power." It with the defendant she left her home and is urged here that this testimony was hearwent to Spokane, where the defendant re- say, not part of the res gesta, and highly sided; that while preparing for her journey prejudicial to the defendant. The learned she had a conversation with her sister rela-trial judge did not admit the testimony tive to the purpose of her going. The sister generally, nor as a part of the res gesta of was examined as a witness on behalf of the the main transaction. When ruling upon state, in the course of which she was asked the objection he distinctly and clearly stated homicide. State v. Young, 55 Kan. 349, 40 Pac. 659. the common law relating to it. Peoples v. Com. 87 Ky. 487, 9 S. W. 509. And Mo. Rev. Stat, § 1268, making an abortion, or an attempt to procure an abortion, a criminal act, does not apply to cases in which death ensues as a consequence of such act. State v. Emerich, 87 Mo. 110. And the facts that it was not unlawful, and no offense at common law, to attempt to produce an abortion upon a woman pregnant, but not with a quick child, with her consent; and that a person accused of manslaughter in causing death in attempting to procure an abortion under such circumstances could not be convicted of statutory manslaughter under 2 How. Anno. Stat. (Mich.) § 9107,-do not entitle the accused to an acquittal, or prevent his prosecution, since he may be found guilty of manslaughter upon the theory that death to the mother resulted from the act, which was made unlawful and punishable by § 9108 thereof. People v. Abbott, 116 Mich. 263, 74 N. W. 529. And the Wisconsin statute reduces the grade of the offense of procuring an abortion, and thereby causing the death of the woman acted upon, to manslaughter in the second degree; and an information thereunder charging a man and his wife with the felonious killing of a woman by the commission of an abortion upon her is not subject to the objection that it charges three distinct offenses,-assault, causing the abortion, and manslaughter in the first degree; since the statute makes such killing manslaughter in the second degree, and the information properly charges that degree of felonious homicide. Hatchard v. State, 79 Wis. 357, 48 N. W. 380. V. Application of rules to the killing of the unborn child. Causing the death of an unborn child was at an early day deemed to be murder. Evans v. State, 49 N. Y. 86. But it was not murder at common law to take the life of the child at any period of gestation previous to delivery. Mitchell V. Com. 78 Ky. 204, 39 Am. Rep. 229; Evans v. People, 49 N. Y. 86; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248. And it is not made murder, under the General Statutes of New York with relation to murder,-an unborn infant not being considered a person or a human being upon whom the crime of murder can be committed; but the unsuccessful attempt to effect the destruction of an unborn quick infant appears to have been treated at common law as a great misdemeanor, and the actual destruction of such an infant as a high crime. Evans v. People, 49 N. Y. $6. So, the killing of an unborn child does not amount to the crime of murder under the Ohio statute, and neither degree of criminal homicide can be predicated upon such a killing. Robbins v. State, 8 Ohio St. 138. But to constitute the crime of manslaughter under Vt. Comp. Stat. p. 560, chap. 108, § 8, in the procuring of an abortion it is not necessary that the child shall have been alive. State v. Howard, 32 Vt. 380, 78 Am. Dec. 609. And where a person intending to procure an abortion does an act which causes a child to be born so much earlier than the natural time that it is born in a state much less ca quence of its early exposure, the person who, by such misconduct, so brings it into the world, and puts it in a situation where it cannot live, is guilty of manslaughter; and the mere existence of a probability that something might have been done to prevent the death would not render the act anything less than murder Reg. v. West, 2 Car. & K. 784, 2 Cox C. C. 500. And Kan. crimes act, § 15, providing that every person who shall administer to any oreg-pable of living, and afterwards dies in consenant woman any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent to produce an abortion, unless the same shall be necessary to preserve her life, or she shall be advised by a physician that it is necessary for that purpose, shall be guilty of manslaughter in the second degree, is inoperative and invalid, though the death of a woman results from the perpetration of such act; since it undertakes to establish a degree of felonious homicide where neither the death of the child nor that of the mother may result from the acts committed, and where there may be no killing or And 1 N. Y. Rev. Stat. 661, § 8, makes the killing of a quick child manslaughter in the first degree when caused by an injury to the mother which would be murder if it resulted in the death of the mother; and N. Y. Stat journey could be shown. They were in the in the presence of the jury that it was com- | made at the time she was preparing for the petent only to explain the purpose of the deceased in leaving home, and as characterizing her act of going, and that he admitted it as explanatory of the nature, character, and object of that act. As thus limited, we think the evidence was properly admitted. It was certainly competent for the state to prove that the defendant left her home to go to Spokane, and that she there sought the defendant and placed herself under his treatment. The preparation she made for going, her condition of health at that time, and her conduct and demeanor, were likewise matters properly admissible in evidence, as a part of the history of the case and necessary to its general understanding. On the same principle, her declarations 1869, chap. 631, makes it manslaughter in the second degree to cause the death of a child in an attempt to procure an abortion. Evans v. People, 49 N. Y. 86. VI. Justification or excuse. a. Consent of woman. The assent of the woman killed, to an abortion committed upon her, is no justification or excuse to a prosecution for her murder, where her death resulted therefrom, either at common law or under the various statutes. State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312; State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776; Peoples v. Com. 87 Ky. 487, 9 S. W. 509. And it is immaterial, in a prosecution for manslaughter committed in the attempt to procure an abortion, that the deceased, prior to the commission of the offense, made an attempt to relieve herself of her pregnancy, unless such attempt contributed to her death. State v. Glass, 5 Or. 73. And an indictment for manslaughter in causing death in an attempt to commit an abortion, charging that the act was committed with force and violence, is sufficient to support a conviction, though the evidence shows that it was done with the woman's consent, the variance not being fatal. People v. Abbott, 116 Mich. 263, 74 N. W. 529. See also Rex v. Russell, 1 Moody C. C. 356; Reg. v. Fretwell, 9 Cox C. C. 152, Leigh & C. C. C. 161, 31 L. J. Mag. Cas. N. S. 145, 8 Jur. N. S. 466, 6 L. T. N. S. 333, 10 Week. Rep. 545; Reg. v. Wilson, Dears. & B. C. C. 127, 26 L. J. Mag. Cas. N. S. 18, 2 Jur. N. S. 1146, 5 Week. Rep. 70, 7 Cox C. C. 190; Reg. v. Gaylor, Dears. & B. C. C. 288, 7 Cox C. C. 253, 40 Eng. L. & Eq. 556,-infra, VI. b; People v. Abbott, 116 Mich. 263, 74 N. W. 529, infra, VII. a. b. The abortionist as an accessory before the fact. The doctrine has been asserted that when the woman consents to, or solicits, an abortion, the one procuring, or attempting to procure, it, thereby causing her death, is merely an accessory before the fact.-especially when he is not present when the act is performed; and that, being an accessory before the fact, he cannot be prosecuted until after the conviction of the principal, and, since this is impossible In the case of State v. Dickinson, 41 Wis. 299, the defendant was tried for the crime because of her death, he is entitled to immunity. Thus, in Rex v. Russell, 1 Moody C. C. 356, it was held that a person who furnished a woman with poison for the purpose of taking the same and causing an abortion, but was absent when she took it, the poison causing her death, is an accessory before the fact only; and, since she cannot be tried for the offense, he also, being an accessory before the fact, cannot be tried at common law, and he is not triable under 7 Geo. IV. chap. 64, § 9, which does not make accessories triable except in cases in which they might have been tried before. So, Reg. v. Fretwell, 9 Cox C. C. 152, Leigh & C. C. C. 161, 31 L. J. Mag. Cas. N. S. 145, 8 Jur. N. S. 466, 6 L. T. N. S. 333, 10 Week. Rep. 545, holds that a man who knowingly her instigation, under the influence of threats procures corrosive sublimate for a woman, at on her part of suicide if the means of procur ing an abortion are not supplied her, upon which she takes it and her death is caused thereby, he not having administered it nor caused it to be taken by her, cannot be held guilty of her murder as an accessory before the fact. It is to be observed, however, that in each of the above cases the woman herself did the deed, and the accused merely procured the means, and in the latter case he only procured the means under compulsion, so that it could not be said that he used them, or caused them to be used. And it has been held that where a person is applied to for a drug for the purpose of procuring a miscarriage, and he gives the person applying the drug, and it accomplishes the object for which it is procured, and her death results, he is criminally responsible for the act, though the taking is not in his presReg. v. Wilson, Dears. & B. C. C. 127, 26 L. J. Mag. Cas. N. S. 18, 2 Jur. N. S. 1146, 5 Week. Rep. 70, 7 Cox C. C. 190. ence. And in Reg. v. Gaylor, 7 Cox C. C. 253, Dears. & B. C. C. 288, 40 Eng. L. & Eq. 556, it was held that a man who procured drugs and gave them to his wife with the intent that she should take them for the purpose of procuring an abortion, she taking them, and her death being caused thereby, is guilty of manslaughter; and cannot escape conviction on the plea that he was only an accessory before the fact, and |