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 geste, 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 procure the abortion, and they administered medicines to her and operated three times upon her with instruments, and that she was then a healthy woman nineteen years of age; and that the female defendant, the wife of the male defendant, had previously offered to perform sary to the protection of either, especially band each time; and that a few days after the the operation, and voluntarily assisted her hus

c. That act was necessary to life or health. The provisions of the criminal law with reference to abortion are designed for the protection and future security of both the mother and the child, and there can be no crime if the conditions are such as to render the act neces

when it cannot be detrimental to the other.

Thus, when the circumstances were such as to induce in the mind of a competent person the belief that a miscarriage was necessary to preserve the life of a mother, or where the testimony in a prosecution for homicide in the commission of, or attempt to commit, an abortion leaves that fact in doubt, this would be sufficient to create a reasonable doubt in the minds of the jury as to the necessity of the act, which would justify an acquittal. State v. Glass, 5 Or. 73.

And the act of a physician in aiding a miscarriage, where the fetus was dead at the time, is not unlawful, so as to re ler him guilty of manslaughter, where puerperal fever

afterwards set in and the patient died, though

he may not have acted with either the best
judgment or ordinary skill, if he acted from
good motives, and it does not appear that the
fever was caused by anything done or omitted
by him.
Honnard v. People, 77 Ill. 481.

And it devolves upon the state to show that the removal of the foetus was not necessary to preserve the life of the mother, and the degree of certainty with which this is required to be shown is such that. no competent person can be presumed to have believed the act necessary. State v. Glass, 5 Or. 73.

This question, however, is covered by statute in many of the states, upon the construction of which the rights and liabilities of the parties concerned depend.

Thus, a person committing an abortion without the advice of two physicians that it is necessary to do so to save the life of the mother, as provided for in Wis. Rev. Stat. § 4352. making the killing manslaughter in the second degree if death results, acts at his peril; and. although he may himself be a physician, and believes that such necessity exists, if in fact it does not exist, he is not exonerated. Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

And testimony, in a prosecution for man

last operation deceased was delivered of a child; and that she was immediately attacked with peritonitis, and died thereof the day succeeding the delivery; and that the disease was caused by the operation,-raises an irresistible inference that it was not necessary to destroy the child to preserve the life of the mother, within the meaning of the provision with reference thereto in Wis. Rev. Stat. § 4352. Ibid.

And the burden of proving that the advice of two physicians that an abortion was necessary to preserve the life of the mother was had, in a prosecution for homicide for death resulting from such an abortion, rests with the accused; the fact of its existence being pecul

iarly within her knowledge and readily provable by her, while it is practically impossible for the state to prove its nonexistence. Ibid.

So, in Illinois, a verdict for manslaughter, in a prosecution for murder in the commission of an abortion, will not be set aside on the ground that the evidence fails to show that the abortion, if produced, was not necessary for the preservation of the mother's life, where there is evidence that, previous to the time that it was committed, she was in an apparently healthy condition, and afterwards she had no other ailment than that which resulted from the act. Howard v. People, 185 Ill. 552, 57 N. E. 441.

But the advice of two physicians that it was necessary to destroy the child in order to save the life of the mother, which will relieve the person performing an operation upon the mother from which her death resulted from liability for manslaughter in the second degree under Wis. Rev. Stat. § 4352, may be proved in a prosecution therefor, by a preponderance of evidence, and need not be beyond reasonable doubt. Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

Under Mo. Rev. Stat. § 1241, making it manslaughter to cause the death of a woman in

character. 1 Greenl. Ev. § 108.
certainly competent to prove that the de-
ceased went to the house of the defendant
at the time it was charged in the informa-
tion the abortion was produced. Upon the
authorities, her intent or purpose in going
there might be shown by her declarations
then made or previously made; because such
declarations became a part of the res gesto.
For it is evident the declarations were con-
nected with the act of her going to the de-
fendant; were expressive of the character,
motive, or object of her conduct; and they
are to be regarded 'as verbal acts indicating
a present purpose or intention, and therefore
are admitted in proof like any other mate-
rial facts.''

It was fendant was indicted for attempting to procure the miscarriage of one Olive Ashe, in consequence of which she died. On the trial it was shown that the deceased, in company with her sister, left home and started for a neighboring town, near where the respondent resided. "The government asked the witness what was the purpose of their thus leaving home, as understood between them at the time of leaving." The trial court overruled the objection of the defendant to the question, after which the witness answered: "I had some talk of going on a visit before I knew she was going. I and she supposed her to be pregnant, and she left Sutton to get an abortion procured, as was understood between us at the time we left." It was held that the evidence was unknown, and, in the second count, that it was committed by administering and causing to be taken certain drugs, substances, and medicines to the grand jury unknown, does not charge an intent to take life in either count, and does not, therefore, charge murder in the first degree, but does charge murder in the second degree; and the defendant is rightfully put upon trial for that offense. State v. Baldwin, 79 Iowa, 714, 45 N. W. 297.

In State v. Howard, 32 Vt. 380. the deprocuring, or attempting to procure, an abortion, however, it is an equally good defense that the destruction of the child was necessary in order to preserve the life of the mother, or that such destruction was advised by a physician to be necessary for that purpose; and an instruction, in a prosecution therefor, that the destruction must not only have been necessary, but that it must also have been advised by a physician to be necessary, is erroneous. 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 V. the child was destroyed, and does not apply State, 33 Me. 48, 54 Am. Dec. 607. to a case where the mother threatened to commit suicide unless she was relieved from her trouble. Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

And an indictment for manslaughter in kill. ing a woman in the performance of an abortion upon her, alleging that the employment of the instruments in question was not necessary to preserve her life, but not alleging that the miscarriage was not necessary to save her life, is bad, and cannot be sustained. Willey v. State, 46 Ind. 363.

VII. The indictment.

a. At common law and under general statutcs. Where the common law prevails, and under general statutes, an indictment for homicide in the commission of, or attempt to commit, an abortion, in common-law form setting forth the facts which constitute the offense in ordinary language, seems to be all that is necessary; but the facts and circumstances from which guilt arises must be made to appear. Thus, an indictment for the crime of murder committed in procuring a miscarriage must allege that the acts charged to have been done in the perpetration of the felony were done with the intention to commit such crime. State v. Leeper, 70 Iowa, 748, 30 N. W. 501; People v. Lohman, 2 Barb. 216.

But an indictment, charging that drugs were administered and instruments used upon the body of the deceased with the specific intent to produce an abortion, clearly implies previous thought and deliberation, and charges that the acts were done with malice aforethought, so as to constitute murder within the meaning of Iowa Code, § 3848. State v. Thurman, 66 Iowa, 693, 24 N. W. 511.

And an indictment for homicide resulting from an attempt to procure an abortion, that the accused killed the woman wilfully, feloniously, and with malice aforethought, though not setting out the unlawful purpose of his act in terms, includes everything in an instruction that, if the accused used the instruments upon the woman for the purpose of producing an abortion, believing her to be pregnant, and thereby killed her in such unlawful attempt, he is guilty of manslaughter. Wilson v. Com. 22 Ky. L. Rep. 1251, 60 S. W. 400.

And an indictment charging the accused with homicide committed in attempting to produce an abortion, charging it to have been com mitted with malice aforethought, is not subject to the objection that it fails to charge the accused with any intent or purpose to injure the woman, or to produce an abortion, or that it does not charge that the means used were dangerous, or that accused acted with guilty Ibid. knowledge or recklessness.

And an indictment alleging that the accused caused the death of the deceased by the use of a certain instrument in an attempt to procure

And an indictment for a homicide caused by procuring a miscarriage, charging in the first count that the murder of the woman was committed with some instrument to the grand jury an 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 of the journey in going to the respondent's, were properly admitted as part of the res gesta. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act." See also State v. Winner, 17 Kan. 298; Solander v. People, 2 Colo. 48; Cluverius v. Com. 81 Va. 787; Thomas v. State, 67 Ga. 460; State v. Peffers, 80 Iowa, 580, 46 N. W. 662; United States v. Nardello, 4 Mackey, 503; Harris v. State, 96 Ala. 24, 11 So. 255; Tilley v. Com. 89 Va. 136, 15 S. E. 526.

previous to her death, as dying declarations. Prior to the admission of these declarations the witness was searchingly and minutely examined as to the condition of the deceased at the time and the circumstances under which they were made, not only by the counsel for the state and the defendant, but by the trial judge himself. The examination covers many pages of the record, and only a brief outline of it can be given here. Describing the condition of the deceased, the witness stated that she was very weak and in great agony; that she had no strength and had to be lifted from one side of the bed to the other; that her "hands felt terribly, The state, over the objection of the dea clammy feeling;" 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.

So, an indictment averring that the accused unlawfully killed a woman while he was in the commission of an unlawful act; then proceeding to set forth the particulars of the unlawful act by alleging the circumstances attending the abortion, it having been occasioned by the use of instruments or drugs, sufficiently charges manslaughter, though it does not aver that her death was occasioned by such instruments or drugs. State v. Barker, 28 Ohio St. 583.

And the fact that an indictment for murder charges that death resulted from the use of a specific metallic instrument used in an attempt to procure an abortion does not make it necessary to prove that death resulted from the use of that particular instrument; it is sufficient if death is proved to have resulted from the use of some other instrument, if the nature of the violence and the kind of death occasioned by it are the same. State v. Smith, 32 Me. 369, 54 Am. Dec. 579.

And an indictment for manslaughter in causing death in an attempt to commit an abortion, charging that the act was done 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.

In the above case People v. Olmstead, 30 Mich. 431, infra, VII. b, was distinguished on the ground that that was a statutory charge of manslaughter under 2 How. Anno. Stat. (Mich.) § 9107, and that the information in this case was more specific, and clearly apprised the defendant of the nature of the

case.

Nor is an indictment for murder charged in the first count to have been committed with some instrument, and in the second count by administering and causing to be taken certain drugs, substances, and medicines, to the grand jurors unknown, bad for duplicity, since it sets forth but one offense. State v. Baldwin, 79 Iowa, 714, 45 N. W. 297.

Nor is an indictment both counts of which contain, first, a distinct charge of using unlawful means to procure a miscarriage, and second, an aliegation of the facts constituting the crime of involuntary manslaughter, though

And an indictment for homicide, charging the commission of an abortion on February 6, and that the woman upon whom it was performed languished and died therefrom soon afterwards and before the finding of the indictment, which was on February 9, is not subject to the objection that it does not aver that she died within a year and a day after her injury. Wilson v. Com. 22 Ky. L. Rep. 1251, 60 S. W. 400.

So, where it is equally criminal to produce an abortion before and after the quickening of the child, in order to fix upon the defendant the guilt of the offense charged upon him in an indictment for murder in an attempt to procure an abortion it is not requisite that it be either alleged or proved that the deceased was quick with child. State v. Smith, 32 Me. 369, 54 Am. Dec. 578; Peoples v. Com. 87 Ky. 487, 9 S. W. 509.

And an indictment for child murder describing the child without name is good, if it suthciently identifies the child and rebuts the presumption that it had a name, though there is no averment that its name was to the jurors unknown. Queen v. Willis, 1 Cox C. C. 136, 1 Den. C. C. 80, 1 Car. & K. 722.

See also People v. Abbott, 116 Mich. 263, 74 N. W. 529, supra; Willey v. State, 46 Ind. 363, supra, VI. c.

b. Under special statutes.

Where homicide in the commission of, or attempt to commit, an abortion has been made a special statutory offense, it is generally sufficient in an indictment therefor to follow the

language of the statute; though different allegations are sometimes required by peculiar stat

utes and unusual conditions.

Thus, manslaughter, in killing a woman by acts calculated to produce an abortion, is a statutory offense in Michigan, originating in the statute defining it, and does not come within any of the descriptions of manslaughter at common law; and nothing short of an allegation conforming to a statute is adequate to inform the accused of the offense with which he is charged. People v. Olmstead, 30 Mich. 431. And an indictment in a prosecution for manslaughter in killing a woman by acts calculated to produce an abortion, which simply alleges felonious, wilful, and wicked killing contrary

That when the witness tried to encourage her, telling her that she must live in hopes, the deceased answered that she had lived in hopes long enough; that “she had given up all hopes." On being examined by the defendant's counsel, the witness further stated that the deceased did not say that she "believed she was going to die," or that "she could not live any longer," or use words to express her belief of her approaching death, other than those above quoted. It was not contended that there was anything in the declarations themselves which would render them inadmissible. The objection is, that it was not shown that they were made while the declarant was in extremis, or while she was under the consciousness of impending

gradually grew worse until her death. Tes- could feel her strength leaving her rapidly. tifying as to the circumstances, the witness stated that she (the witness) has been for some time trying to get from the deceased the cause of her illness; that the deceased had previously refused to tell her, not only anything concerning the cause of her illness, but even her name; and that, just preceding the conversation in which the declarations were made, the deceased called her to her bedside, took hold of her hands, and made the statements. The witness further testified that in the course of this conversation the deceased said that she knew she couldn't last long unless there was something done for her; that she didn't think she would ever be taken out of the room where she was lying until she was packed out; that she 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 the means or manner of causing the death, or refer specifically to the statute. Ibid.

And where the crime is murder in the second degree, committed by the defendants while engaged in the commission of the felony defined by N. D. Rev. Code, § 7177, relating to the procuring of an abortion, all the averments relating to the subordinate felony are properly and necessarily inserted in the information as descriptive of the major offense,-that of murder in the second degree. State v. Belyea, 9 N. D. 353, 83 N. W. 1.

tempt to commit an abortion, either by the use of medicines or instruments, whereby the death of the mother or of the child results, unless the same shall have been necessary to preserve the life of the mother, or shall have been advised by two physicians to be necessary for such purpose, manslaughter in the second degree. Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

So, an information, charging the defendants with the crime of murder in the second degree, committed while they were engaged in a felony defined by N. D. Rev. Code, § 7177, with relation to abortion, setting out the facts constituting the offense charged in that section, does not charge two distinct and independent offenses, and is not demurrable for duplicity. State v. Belyea, 9 N. D. 353, 83 N. W. 1.

But an election by the people of the count relied upon for conviction on a prosecution for manslaughter, for causing death by acts intended to produce an abortion, under an information charging respectively the use of drugs, 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 offense, using appropriate terms to describe it as such, and it need not be charged that it was done feloniously. Com. v. Jackson, 15 Gray, 187.

And an indictment, under that act, charging that one of the defendants used instruments, and the same defendant, with the other defendant, administered drugs, and that by both of said means the woman died, is not bad for duplicity: the proof of the use of either means alleged is sufficient to warrant a conviction. Com. v. Brown, 14 Gray, 419.

And an indictment charging a man with procuring a miscarriage by one or more of the means described in the statute, whereby the woman died, and whereby the accused killed her, sufficiently avers that she died in consequence thereof, and does not charge the crime of manslaughter. Ibid.

And an information averring every essential fact to constitute the crime charged, against which the statute is aimed, substantially in the language of the statute and with such a degree of certainty that the court has no difficulty in pronouncing judgment upon a conviction, sufficiently charges. the offense under Wis. Rev.

And the lesser crime of manslaughter is included in the greater, murder, under Ill. Crim. Code, § 3, subd. 1, providing that, if the death of the "mother" results from an abortion, the person producing it shall be guilty of murder, and the word "mother" therein means a woman pregnant with child; and a conviction of manslaughter may be had thereunder under an indictment charging murder of a woman preg. nant with child. Howard v. People, 185 Ill. 552, 57 N. E. 441.

An indictment, charging all the facts necessary to constitute the crime of manslaughter under N. Y. Laws 1846, chap. 22, § 1, however, making it manslaughter to administer drugs to a pregnant female with intent to destroy the child, in case the death of such child be thereby produced, but charging the intent to be to produce a miscarriage instead of to destroy the child, is fatally defective, but it charges a misdemeanor under N. Y. Laws 1845, chap. 260, § 2, making such acts with intent to produce a miscarriage a misdemeanor. And where it goes further, and alleges that the patient was quick with child, and that the death of such child was effected, characterizing the act 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 was literally and was without hope or expectation of rebreathing her last. The rule is satisfied covery? This conclusion must 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 concluan 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 misdemeanor, since they do not contain a valid charge of felony, intent to destroy the child being an essential part of the definition of the offense contained in the act of 1846. Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340, Affirming 2 Baro. 216.

And an indictment for killing a mother in an attempt to produce an abortion is not good, when brought under Mo. Rev. Stat. 1268, defining the crime of abortion, where that section at the time of the criminal act did not apply to a case in which death ensued in consequence of the criminal act, unless the child was quick. State v. Emerich, 13 Mo. App. 492, Affirmed in 87 Mo. 110.

And an indictment for manslaughter in the second degree under Mo. Rev. Stat. § 1241, in causing the death of a woman in the attempt to commit an abortion, is rendered bad by the omission of the descriptive words "pregnant with a quick child." State v. Emerich, 87 Mo. 110.

a. Admissibility generally.

General rules as to the admissibility of evidence in homicide cases apply to homicide in the commission of, or attempt to commit, an abortion. The only variations from the general rules are those made necessary by the peculiar facts.

Thus, where, in a prosecution for manslaughter in causing the death of a woman in an attempt to procure an abortion, it is the theory of the prosecution that the defendant was responsible for the condition of the deceased, and that he enticed her away from her father's home to enable him to commit the crime charged against him, all he said and did in furtherance of his purpose from the time she left her home, and the means he employed in doing and saying what he did, are a part of the res gesta, and proper to be given in evidence; and a statement by the father of the woman, that he had been told by the father of the accused that the latter had received a

And an indictment for murder in the second telegram or telephone message from the ac

degree under N. Y. Laws 1869, chap. 631, for causing the death of a child in an attempt to procure an abortion, is not sufficient where it does not charge that the child had quickened at the time of the alleged offense. Evans v. People, 49 N. Y. 86.

Likewise, under statutes excusing abortion when necessary to save the woman's life, it must be averred in an indictment for homicide in the commission of, or attempt to commit, an abortion, that miscarriage was not necessary to save the woman's life. State v. Leeper, 70 Iowa, 748, 30 N. W. 501.

But a count in an indictment for murder committed in an attempt to produce an abortion, charging the defendant with administering to deceased, with intent to produce a mis

carriage, a certain noxious and abortifacient drug, it not being necessary to administer the same for the preservation of her life, sufficiently negatives the statutory exception as to abortion necessary for the preservation of the life of the mother. Beasley v. People, 89 Ill. 571. See also Hatchard v. State, 79 Wis. 357, 48 N. W. 380, supra, IV. c.

cused that the woman was sick, and wanted her mother to come and see her, is admissible.

People v. McDowell, 63 Mich. 229, 30 N. W. 68.

And a conversation between deceased and her mother, on the one part, and the accused, in a prosecution for manslaughter committed in procuring an abortion upon deceased, upon the other part, in which the accused offered to produce the abortion and said that she had helped hundreds of girls and women out of just such trouble, is admissible in evidence, not only to show the purpose for which deceased and her mother went to accused, but also to show that the accused was acting voluntarily and haswithout coercion by her band. Hatchard v. State, 79 Wis. 357, 48 N W. 380.

But a statement to a witness by a woman said to have performed the operation in question, that she was in the habit of performing them for the purpose of abortion, and her description to the witness of the method adopted, are inadmissible in evidence on a prosecution against another person for manslaughter, as an accessory before the fact, in causing the death of a person by an attempt to commit an abor