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of having murdered Jenny Everson in the structed the jury that they might consider commission of an abortion. One Mary these declarations as evidence tending to Erickson was called as a witness, and, over prove the fact that the deceased had at that the objection of the defendant, was permit- time the intention of having an abortion proted to testify to certain conversations had duced upon her, but that it was not evidence with the deceased immediately preceding the that the defendant had actually produced time the deceased left the place where they the abortion, or had engaged to do it. It was were stopping, as to where she was going held that to admit the evidence with this reand for what purpose. In these conversa- striction was not error, the court saying: tions the deceased stated to the witness that “The first inquiry is, whether the declarashe (the deceased) was in a family way, tions of deceased to Mary Erickson were adthat she had been to see the defendant missible for the purpose of showing her inabout it, that she was going to the defend- tention, and as their scope and effect were ant to get medicine and a syringe, and that restricted by the court. We are of opinion she had engaged with the defendant to re- that they were. They constituted a part of turn to his place on a subsequent day for the res gestue, were contemporaneous with the purpose of having instruments used to the main fact under consideration, and were get rid of the child. The trial court in- ' so connected with it as to illustrate its that in law there can be no accessory before | slaughter in causing the death of a woman by the fact in manslaughter.
the commission of an abortion upon her, that
the deceased applied to the defendants to proc. That act was necessary to life or health.
cure the abortion, and they administered medi
cines to her and operated three times upon her The provisions of the criminal law with reference to abortion are designed for the pro- healthy woman nineteen years of age; and that
with instruments, and that she was then a tection and future security of both the mother the female defendant, the wife of the male and the child, and there can be no crime if the defendant, had previously offered to perform conditions are such as to render the act necessary to the protection of either,—especially band each time; and that a few days after the
the operation, and voluntarily assisted her huswhen it cannot be detrimental to the other.
last operation deceased was delivered of a Thus, when the circumstances were such as to
child; and that she was immediately attacked induce in the mind of a competent person the be
with peritonitis, and died thereof the day suclief that a miscarriage was necessary to pre ceeding the delivery; and that the disease was serve the life of a mother, or where the testi.
caused by the operation, -raises an irresistible mony in a prosecution for homicide in the com
inference that it was not necessary to destroy miesion of, or attempt to commit, an abortion
the child to preserve the life of the mother, leaves that fact in doubt, this would be suffi
within the meaning of the provision with refercient to create a reasonable doubt in the minds
ence thereto in Wis. Rev. Stat. $ 4352. Ibid. of the jury as to the necessity of the act, which would justly an acquittal.
And the burden of proving that the advice State v.
of two physicians that an abortion was necesGlass, 5 Or. 73.
sary to preserve the life of the mother was And the act of a physician in aiding a miscarriage, where the fætus was dead at the
had, in a prosecution for homicide for death re.
sulting from such an abortion, rests with the time, is not unlawful, so as to rei ler him accused; the fact of its existence being peculguilty of manslaughter, where puerperal fever iarly within her knowledge and readily provafterwards set in and the patient died, though able by her, while it is practically impossible he may not have acted with either the best for the state to prove its nonexistence. Ibid. judgment or ordinary skill, if he acted from
So, in Illinois, a verdict for manslaughter, good motives, and it does not appear that the fever was caused by anything done or omitted
in a prosecution for murder in the commission
of an abortion, will not be set aside on the by him. Honnard v. People, 77 Ill. 481.
ground that the evidence fails to show that And it devolves upon the state to show that
the abortion, if produced, was not necessary the removal of the fætus was not necessary to
for the preservation of the mother's life, where preserve the life of the mother, and the de
there is evidence that, previous to the time gree of certainty with which this is required to be shown is such that. no competent person
that it was committed, she was in an apparcan be presumed to have believed the act neces
ently healthy condition, and afterwards sbe bad
no other ailment than that which resulted sary. State v. Glass, 5 Or. 73.
from the act. Howard v. People, 185 Ill. 552, This question, however, is covered by statute
57 N. E. 441. in many of the states, upon the construction of
But the advice of two physicians that it was which the rights and liabilities of the parties concerned depend.
necessary to destroy the child in order to save Thus, a person committing an abortion with
the life of the mother, which will relieve the out the advice of two physicians that it is nec
person performing an operation upon the mother essary to do so to save the life of the mother,
from which her death resulted from liability as provided for in Wis. Rev. Stat. $ 4352, for manslaughter in the second degree under making the killing manslaughter in the second Wis. Rev. Stat. $ 4352, may be proved in a degree if death results, acts at his peril; and. prosecution therefor, by a preponderance of evi. although he may himself be a physician, and dence, and need not be beyond reasonable believes that such necessity exists, if in fact doubt. Hatchard v. State, 79 Wis. 357, 48 N. it does not exist, he is not exonerated. Hatcb W. 380. ard v. State, 79 Wis. 357, 48 N. W. 380.
Under Mo. Rev. Stat. & 1241, making it manAnd testimony, in a prosecution for man slaughter to cause the death of a woman in
character. 1 Greenl. Ev. $ 108. It was fendant was indicted for attempting to procertainly competent to prove that the de- cure the miscarriage of one Olive Ashe, in ceased went to the house of the defendant consequence of which she died. On the trial at the time it was charged in the informa- it was shown that the deceased, in company tion the abortion was produced. Upon the with her sister, left home and started for a authorities, her intent or purpose in going neighboring town, near where the respondthere might be shown by her declarations ent resided. “The government asked the then made or previously made; because such witness what was the purpose of their thus declarations became a part of the res gestae. leaving home, as understood between them For it is evident the declarations were con at the time of leaving.” The trial court nected with the act of her going to the de- overruled the objection of the defendant to fendant; were expressive of the character, the question, after which the witness anmotive, or object of her conduct; and they swered: "I had some talk of going on a are to be regarded as verbal acts indicating visit before I knew she was going. I and a present purpose or intention, and therefore she supposed her to be pregnant, and she are admitted in proof like any other mate left Sutton to get an abortion procured, as rial facts.'”
was understood between us at the time we In State v. Howard, 32 Vt. 380, the de- 'left.” It was held that the evidence was
procuring, or attempting to procure, an abor. | unknown, and, in the second count, that it was tion, however, it is an equally good defense that committed by administering and causing to be the destruction of the child was necessary in taken certain drugs, substances, and medicines order to preserve the life of the mother, or to the grand jury unknown, does not charge that such destruction was advised by a phy, an intent to take life in either count, and does sician to be necessary for that purpose ; and not, therefore, charge murder in the first dean instruction, in a prosecution therefor, that gree, but does charge murder in the second dethe destruction must not only have been neces. gree ; and the defendant is rightfully put upon sary, but that it must also have been advised trial for that offense. State V. Baldwin, 79 by a physician to be necessary, is erroneous. Iowa, 714, 45 N. W. 297. State v. Fitzporter, 93 Mo. 390, 6 S. W. 223. And an indictment charging homicide in the
And Wis. Rev. Stat. & 4352, making an abor- attempt to commit an abortion, alleging the tion from which death results manslaughter in use of instruments, is not a charge that the one the second degree, unless the same shall have using the instruments intended to destroy the been necessary to preserve the life of the moth-child, within the meaning of Me. Rev. Stat. er, was intended to apply only to a case where chap. 160, $ 13, and does not, therefore, conthe death of the mother could reasonably be tain an essential ingredient to make it a felony, expected to resuit from natural causes unless and charges manslaughter only. Smith the child was destroyed, and does not apply State, 33 Me. 48, 54 Am. Dec. 607. to a case where the mother threatened to But an indictment, charging that drugs were commit suicide unless she was relieved from administered and instruments used upon the her trouble. Hatchard v. State, 79 Wis. 357, body of the deceased with the specific intent 48 N. W. 380.
to produce an abortion, clearly implies previous And an indictment for manslaughter in kill. thought and deliberation, and charges that the ing a woman in the performance of an abor- acts were done with malice aforethought, so as tion upon her, alleging that the employment to constitute murder within the meaning of of the instruments in question was not neces- Iowa Code, š 3848. State v. Thurman, 66 Iowa, sary to preserve her life, but not alleging that 693, 24 N. W. 511. the miscarriage was not necessary to save her And an indictment for homicide resulting life, is bad, and cannot be sustained. Willey from an attempt to procure an abortion, that v. State, 46 Ind. 363.
the accused killed the woman wilfully, feloni
ously, and with malice aforethought, though VII. The indictment.
not setting out the unlawful purpose of his act
in terms, includes everything in an instruction a. At common law and under general statutes.
that, if the accused used the instruments upon Where the common law prevails, and under
the woman for the purpose of producing an general statutes, an indictment for homicide abortion, believing her to be pregnant, and in the commission of, or attempt to commit, an
thereby killed her in such unlawful attempt, he abortion, in common-law form setting forth
is guilty of manslaughter. Wilson v. Com. 22 the facts which constitute the offense in or
Ky. L. Rep. 1251, 60 S. W. 400. dinary language, seems to be all that is neces
And an indictment charging the accused with sary; but the facts and circumstances from
homicide committed in attempting to produce which guilt arises must be made to appear.
an abortion, charging it to have been com Thus, an indictment for the crime of mur
mitted with malice aforethought, is not subject der committed in procuring a miscarriage must
to the objection that it fails to charge the acallege that the acts charged to have been done cused with any intent or purpose to injure in the perpetration of the felony were done the woman, or to produce an abortion, or that with the intention to commit such crime. State
it does not charge that the means used were v. Leeper, 70 Iowa, 748, 30 N. W. 501 ; People dangerous, or that accused acted with guilty v. Lobman, 2 Barb. 216.
knowledge or recklessness. Ibid. And an indictment for a homicide caused by And an indictment alleging that the accused procuring a miscarriage, charging in the first caused the death of the deceased by the use of count that the murder of the woman was com- a certain instrument in an attempt to procure mitted with some instrument to the grand jury lan abortion, the name of which instrument is
properly admitted, the court saying: “The ments made by the deceased some two days declarations of Olive Ashe, as to the purpose previous to her death, as dying declarations. of the journey in going to the respondent's, Prior to the admission of these declarations were properly admitted as part of the res the witness was searchingly and minutely geste. The mere act of going was equivo- examined as to the condition of the deceased cal; it might have been for professional ad- at the time and the circumstances under vice and assistance. The declarations were which tlıey were made, not only by the of the same force as the act of going, and counsel for the state and the defendant, but were admissible as part of the act.” See by the trial judge himself. The examinaalso State v. Winner, 17 Kan. 298; Solander tion covers many pages of the record, and v. People, 2 Colo. 48; Cluverius v. Com. 81 only a brief outline of it can be given here. Va. 787; T'homas v. State, 67 Ga. 460; State Describing the condition of the deceased, the v. Peffers, 80 Iowa, 580, 46 N. W. 662; witness stated that she was very weak and United States v. Nardello, 4 Mackey, 503; in great agony; that she had no strength Harris v. State, 96 Ala. 24, 11 So. 255; Til and had to be lifted from one side of the bed ley v. Com. 89 Va. 136, 15 S. E. 526.
to the other; that her "hands felt terribly, The state, over the objection of the de
a clammy feeiing;” and that she fendant, was allowed to introduce state-'never rallied after the conversation, but
to the jurors unknown, sufficiently describes not entirely formal. Traylor v. State, 101 the instrument and the cause of death. Com. Ind. 65. V. Jackson, 15 Gray, 187.
And an indictment for homicide, charging So, an indictment averring that the accused the commission of an abortion on February 6, unlawfully killed a woman while he was in the and that the woman upon whom it was percommission of an unlawful act; then proceed formed languished and died therefrom SOOD ing to set forth the particulars of the unlawful afterwards and before the finding of the inact by alleging the circumstances attending dictment, which was on February 9, is not the abortion, it having been occasioned by the subject to the objection that it does not aver
of instruments drugs,-sufficiently that she died within a year and a day after her charges manslaughter, though it does not aver injury. Wilson V. Com. 22. Ky. L. Rep. 1251, that her death was occasioned by such instru- 60 S. W. 400. ments or drugs. State v. Barker, 28 Ohio St. So, where it is equally criminal to produce 583.
an abortion before and after the quickening of And the fact that an indictment for murder | the child, in order to fix upon the defendant charges that death resulted from the use of a the guilt of the offense charged upon him in specific metallic instrument used in an attempt an indictment for murder in an attempt to proto procure an abortion does not make it neces- cure an abortion it is not requisite that it be sary to prove that death resulted from the use either alleged or proved that the deceased was of that particular instrument; it is sufficient quick with child. State v. Smith, 32 Me. 369, if death is proved to have resulted from the 54 Am. Dec. 578; Peoples v. Com. 87 Ky. 487, use of some other instrument, if the nature of 9 S. W. 509. the violence and the kind of death occasioned And an indictment for child murder describby it are the same. State v. Smith, 32 Me. ing the child without name is good, if it suffi369, 54 Am. Dec. 579.
ciently identifies the child and rebuts the preAnd an indictment for manslaughter in caus- sumption that it had a name, though there is ing death in an attempt to commit an abortion, no averment that its name was to the jurors charging that the act was done with force and unknown. Queen v. Willis, 1 Cox C. C. 136, violence, is sufficient to support a conviction, 1 Den. C. C. 80, 1 Car. & K. 722. though the evidence shows that it was done See also l'eople v. Abbott, 116 Mich. 263, 74 with the woman's consent, the variance not N. W. 529, supra; Willey v. State, 46 Ind. 363, being fatal. People v. Abbott, 116 Mich. 263, supra, VI. C. 74 N. W. 329. In the above case People v. Olmstead, 30
b. Under special statutes. Mich. 431, infra, VII. b, was distinguished on
Where homicide in the commission of, or at the ground that that was a statutory charge tempt to commit, an abortion has been made of manslaughter under 2 How. Anno. Stat.
a special statutory offense, it is generally suf(Mich.) $ 9107, and that the information in
ficient in an indictment therefor to follow the this case more specific, and clearly ap- language of the statute; though different alleprised the defendant of the nature of the gations are sometimes required by peculiar statcase.
utes and unusual conditions. Nor is an indictment for murder charged in
Thus, manslaughter, in killing a woman by the first count to have been committed with acts calculated to produce an abortion, is a some instrument, and in the second count by statutory offense in Michigan, originating in administering and causing to be taken certain the statute defining it, and does not come withdrugs, substances, and medicines, to the grand in any of the descriptions of manslaughter at jurors unknown, bad for duplicity, since it sets common law; and nothing short of an allega. forth but one offense. State v. Baldwin, 79 tion conforming to a statute is adequate to inIowa, 714, 45 N. W. 297.
form the accused of the offense with which he Nor is an indictment both counts of which is charged. People v. Olmstead, 30 Mich. 431, contain, first, a distinct charge of using And an indictment in a prosecution for man. unlawful means to procure a miscarriage, and slaughter in killing a woman by acts calculated second, an aliegation of the facts constituting to produce an abortion, which simply alleges the crime of involuntary manslaughter, though 'felonious, wilful, and wicked killing contrary
gradually grew worse until her death. Tes- I could feel her strength leaving her rapidly. titying as to the circumstances, the witness That when the witness tried to encourage stated that she (the witness) has been for her, telling her that she must live in hopes, some time trying to get from the deceased the deceased answered that she had lived in the cause of her illness; that the deceased hopes long enough; that “she had given up had previously refused to tell her, not only all hopes.” On being examined by the deanything concerning the cause of her illness, fendant's counsel, the witness further stated but even her name; and that, just preceding that the deceased did not say that she “bethe conversation in which the declarations lieved she was going to die," or that "she were made, the deceased called her to her could not live any longer,” or use words to bedside, took hold of her hands, and made express her belief of her approaching death, the statements. The witness further testi- other than those above quoted. It was not fied that in the course of this conversation contended that there was anything in the the deceased said that she knew she couldn't declarations themselves which would render last long unless there was something done them inadmissible. The objection is, that it for her; that she didn't think she would was not shown that they were made while ever be taken out of the room where she was the declarant was in extremis, or while she lying until she was packed out; that she was under the consciousness of impending to the statute is insufficient under the Michigan | Stat. 4352, making an abortion, or an atstatute, where it does not in any way set out tempt to commit an abortion, either by the use the means or manner of causing the death, or of medicines or instruments, whereby the death refer specifically to the statute. Ibid.
of the mother or of the child results, unless And where the crime is murder in the second the same shall have been necessary to preserve degree, committed by the defendants while en- the life of the mother, or shall have been adgaged in the commission of the felony defined vised by two physicians to be necessary for by N. D. Rev. Code, § 7177, relating to the pro- such purpose, manslaughter in the second decuring of an abortion, all the averments relat
Hatchard v. State, 79 Wis. 357, 48 N. ing to the subordinate felony are properly and W. 380. necessarily inserted in the information as de- So, an information, charging the defendants scriptive of the major offense,--that of murder with the crime of murder in the second degree, in the second degree. State v. Belyea, 9 N. D. committed while they were engaged in a felony 353. 83 N. W. 1.
defined by N. D. Rev. Code, $ 7177, with relaBut an election by the people of the count tion to abortion, setting out the facts constirelied upon for conviction on a prosecution for tuting the offense charged in thạt section, does manslaughter, for causing death by acts in- not charge two distinct and independent oftended to produce an abortion, under an infor- fenses, and is not demurrable for duplicity. mation charging respectively the use of drugs, State v. Belyea, 9 N. D. 353, 83 N. W. 1. the use of instruments, and the employment of And a count for murder at common law, in means unknown, made upon the submission of causing the death of a woman by an attempt the case to the jury, sufficiently protects the to commit an abortion, and a count for the rights of the accused. People v. Seaman, 107 statutory offense of manslaughter, may be Mich. 348. 61 Am. St. Rep. 326, 65 N. W. 203. joined in the same information, where that
And under Mass. Stat. 1845, chap. 27, mak charge in both counts grew out of the same ing abortion a statutory offense, distinguishable transaction. People v. Sessions, 58 Mich. 594, from murder and punishable by milder punish- | 26 N. W. 291. ment, it is sufficient to charge it as a statutory | And the iesser crime of manslaughter is inoffense, using appropriate terms to describe it cluded in the greater, murder, under Ill. Crim. as such, and it need not be charged that it was Code, $ 3, subd. 1, providing that, if the death done feloniously. Com. V. Jackson, 15 Gray, of the "mother" results from an abortion, the 187.
person producing it shall be guilty of murder, And an indictment, under that act, charging and the word "mother" therein means a woman that one of the defendants used instruments, pregnant with child; and a conviction of manand the same defendant, with the other defend slaughter may be had thereunder under an inant, administered drugs, and that by both of dictment charging murder of a woman pregsaid means the woman died, is not bad for nant with child. Howard v. People, 185 III. duplicity : the proof of the use of either means 552, 57 N. E. 441. alleged is sufficient to warrant a conviction. An indictment, charging all the facts necesCom. v. Brown, 14 Gray, 419.
sary to constitute the crime of manslaughter And an indictment charging a man with pro- under N. Y. Laws 1846, chap. 22, § 1, however, curing a miscarriage by one or more of the making it manslaughter to administer drugs to means described in the statute, whereby the
a pregnant female with intent to destroy the woman died, and whereby the accused killed child, in case the death of such child be thereher, sufficiently avers that she died in conse- by produced, but charging the intent to be to quence thereof, and does not charge the crime produce a miscarriage instead of to destroy of manslaughter. Ibid.
the child, is fatally defective, but it charges And an information averring every essential a misdemeanor under N. Y. Laws 1845, chap. fact to constitute the crime charged, against 260, $ 2, making such acts with intent to prowhich the statute is aimed, substantially in the duce a miscarriage a misdemeanor. And where language of the statute and with such a degree it goes further, and alleges that the patient of certainty that the court has no difficulty in was quick with child, and that the death of pronouncing judgment upon a conviction, suffi- such child was effected, characterizing the act ciently charges. the offense under Wis. Rev. 'of the defendant as felonious, without charging
death. The first part of the objection is di- | larations tend to illustrate. See the cases rected against the time elapsing between the collected in 10 Am. & Eng. Enc. Law, 2d ed. making of the declarations and the declar- p. 369, note 4. As to the second part of the ant's death. But, while this was an element objection, it is true it was not shown that proper and necessary to be considered in de the declarant said, in so many words, that termining the admissibility of the declara- she believed she was going to die, or that tions, it was not of itself sufficient to require she could not live longer, but this was not their exclusion. The rule requiring it to be necessary. The question to be determined shown that the declarations were made here is, Was the trial court justified in bewhile the declarant was in extremis does lieving: from the nature of the evidence, that not require that it be shown that they were the declarant believed she was about to die, made while the declarant wa literally and was without hope or expectation of rebreathing her last. The rule is satisfied covery? This conclusion niust be drawn when it is shown that the declarant died from the entire statement and the condiin the course of the illness from which she tions surrounding the declarant, and not was suffering at the time they were made, from any specific words she may have used. and that the illness from which she was Without again recurring to the record, we suffering was the direct and proximate re. think the statements and circumstances sult of the original injury which the dec. shown justify the trial court in the conclu
an intent upon his part to destroy the child,
VIII. Evidence. these allegations do not contradict the charge for a misdemeanor, and do not merge the mis
a. Admissibility generally. demeanor, since they do not contain a valid charge of felony, intent to destroy the child General rules as to the admissibility of evibeing an essential part of the definition of the dence in homicide cases apply to homicide in offense contained in the act of 1846. Lohman the commission of, or attempt to commit, an v. People, 1 N. Y. 379, 49 Am. Dec. 340, Affirm- abortion. The only variations from the general ing 2 Baro. 216.
rules are those made necessary by the peculiar And an indictment for killing a mother in an facts. attempt to produce an abortion is not good, Thus, where, in a prosecution for manslaughwhen brought under Mo. Rev. Stat. Åter in causing the death of a woman in an at1268, defining the crime of abortion, where tempt to procure an abortion, it is the theory that section at the time of the criminal act of the prosecution that the defendant was redid not apply to a case in which death ensued sponsible for the condition of the deceased, and in consequence of the criminal act, unless the that he enticed her away from her father's child was quick. State v. Emerich, 13 Mo. home to enable him to colomit the crime App. 492, Affirmed in 87 Mo. 110.
charged against him, all he said and did in And an indictment for manslaughter in the furtherance of his purpose from the time she second degree under Mo. Rev. Stat. $ 1241, in left her bome, and the means he employed in causing the death of a woman in the attempt doing and saying what he did, are a part of to commit an abortion, is rendered bad by the the res gestæ, and proper to be given in eriomission of the descriptive words “pregnant dence; and a statement by the father of the with a quick child." State v. Emerich, 87 Mo. woman, that he had been told by the father 110.
of the accused that the latter had received a And an indictment for murder in the second telegram or telephone message from the ae
cused that the woman was sick, and wanted degree under N. Y. Laws 1869, chap. 631, for
her mother to come and see her, is admissible. causing the death of a child in an attempt to People v. McDowell, 63 Mich. 229, 30 N. W. procure an abortion, is not sufficient where it
68. does not charge that the child had quickened at And a conversation between deceased and the time of the alleged offense. Evans v. Peo- her mother, on the one part, and the accused, ple, 49 N. Y. 86.
in a prosecution for manslaughter committed Likewise, under statutes excusing abortion in procuring an abortion upon deceased, upon when necessary to save the woman's life, it the other part, in which the accused offered must be averred in an indictment for homicide to produce the abortion and said that she had in the commission of, or attempt to commit, an helped hundreds of girls and women out of abortion, that miscarriage was not necessary just such trouble, is admissible in evidence, to save the woman's life. State v. Leeper, 70
not only to show the purpose for which deIowa, 748, 30 N. W. 501.
ceased and her mother went to accused, but But a count in an indictment for murder also to show that the accused was acting rolcommitted in an attempt to produce an abor- untarily and without coercion by her hus
band. tion, charging the defendant with administer
Hatchard v. State, 79 Wis. 357, 48 N.
W. 380. ing to deceased, with intent to produce a miscarriage, a certain noxious and abortifacient said to have performed the operation in ques
But a statement to a witness by a woman drug, it not being necessary to administer the
tion, that she was in the habit of performing same for the preservation of her life, sufficient. them for the purpose of abortion, and her dely negatives the statutory exception as to abor- scription to the witness of the method adopted, tion necessary for the preservation of the life are inadmissible in evidence on a prosecution of the mother. Beasley v. People, 89 Ill. 571. against another person for manslaughter, as an
See also Hatchard v. State, 79 Wis. 357, 48 accessory, before the fact, in causing the death N. W. 380, supra, IV. c.
of a person by an attempt to commit an abor