criminal law it is not recognized, unless by statute, until it has quickened. At common law, therefore, a woman who takes drugs or uses an instrument upon herself, and so causes a miscarriage, before she is quick with child, is not guilty of any crime for which she can be punished. And the rule is the same where a physician or other person procures a miscarriage with the woman's consent. If a woman is not quick with child, one who uses an instrument or administers a drug, without her consent, for the purpose of procuring a miscarriage, is guilty of an assault and battery. And if she dies in consequence, he is guilty either of murder or manslaughter, whether she consented or not, on the ground that he has done an act, without. lawful purpose, dangerous to life, or at least an unlawful act. But if the woman consents, and does not die, he is guilty of no crime at all. This principle is well settled at common law.538 And since procuring a miscarriage, with the woman's consent, before the child has quickened, is no offense, it follows

538 Com. v. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; Com. v. Bangs, 9 Mass. 387; State v. Cooper, 22 N. J. Law, 52, 51 Am. Dec. 248;

that an attempt under such circumstances is not indictable,539

After a child has quickened in the womb, it is within the protection of the criminal law, and it is a high misdemeanor for the mother to destroy it by the use of drugs or instruments, so that it is born dead, or for a third person to destroy it, either with or without her consent.540 If the child dies in the process of delivery, or after delivery, but before an independent circulation has been established, the offense is merely a misdemeanor.

Abrams v. Foshee, 3 Iowa, 274, 66 Am. Dec. 77; Mitchell v. Com., 78 Ky. 204, 39 Am. Rep. 227.

There are several decisions holding that it is an offense at common law to procure an abortion before the child has quickened. They are not based, however, upon any authority at common law, but proceed upon a consideration of what the law ought to be, which is a question for the legis lature, and not for the courts. See Mills v. Com., 13 Pa. St. 633, followed in State v. Slagle, 83 N. C. 630.

539 Ante, § 129; State v. Cooper, 22 N. J. Law, 52, 51 Am. Dec. 248.

540 See the cases above cited. And see 3 Inst. 50; 1 Hale, P. C. 433; 1 Hawk. P. C. c. 31, § 16; Holliday v. People, 9 Ill. 111; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Evans v. People, 49 N.

If it does not die until after an independent
circulation has been established, the offense is
murder.541

291. Statutory Charges.

Procuring a miscarriage before the child
has quickened has very generally been made
a crime by statute. It was made a felony in
the reign of George III. This statute recog-
nized the common-law distinction. It made
procuring an abortion after quickening of
the child a capital felony, whereas at com-
mon law it was a misdemeanor only, and pro-
curing a miscarriage before quickening of
the child a felony of a mitigated character.
The distinction has also been recognized by
some of the statutes in this country in mak-
ing it a crime to procure an abortion before
the child has quickened. Most statutes,
however, make no distinction at all.542 Un-
der a statute making it an offense to admin-

541 Ante, § 234b.

542 See State v. Fitzgerald, 49 Iowa, 260, 31 Am.
Rep. 148; Eckhardt v. People, 83 N. Y. 462, 38 Am.
Rep. 462; Com. v. Tibbetts, 157 Mass. 519; State
v. Howard, 32 Vt. 380. Under the Michigan stat-
ute, the child must have quickened. People v.
McDowell, 63 Mich. 229.

See, generally, as to the statutory offense in the

ister a drug or use an instrument "with in-
tent to produce a miscarriage of any preg-
nant woman," it is not necessary that the
woman shall be quick with child.543

Under a statute punishing any one who
shall use an instrument "with intent to de-
stroy the child of which a woman may be
pregnant, and shall thereby destroy such
child before its birth," the intent to destroy
the child is an essential element of the of-
fense, and an indictment under the statute is
fatally defective if it fails to allege such in-
tent. 544

292. Justification and Excuse.

It is no offense at common law to procure
an abortion, if it is done in order to save the
life of the woman, and is necessary, or rea-
sonably believed to be necessary, in order to
save her life. It is generally expressly so
provided in the statutes punishing abortion.
If the exception is not expressly stated, it

various states, 1 Am. & Eng. Enc. Law (2d Ed.)
188 et seq.

543 State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep.
148.

544 Smith v. State, 33 Me. 48, 54 Am. Dec. 607;
Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340.

must be implied, for the statute must be read
in the light of the common law.545 General-
ly speaking, there must be a criminal intent.
To cause a miscarriage by accident is no of-
fense,546

VIII. RAPE.

293. Definition.-Rape is a felony at common
law. It consists in having unlawful carnal
knowledge of a woman by force and without her
consent.

294. Force and Want of Consent.

Rape is defined by East as "the unlawful
carnal knowledge, by a man, of a woman,
forcibly and against her will," and by
Hawkins as "unlawful and carnal knowl-
edge of a woman by force and against her
will."548 The expression "against her will,"

545 See State v. Fitzporter, 93 Mo. 390; Bassett
v. State, 41 Ind. 303; State v. Stokes, 54 Vt. 179;
Hatchard v. State, 79 Wis. 357.

Advice of a physician, if acted upon in good
faith, is generally a defense. State v. Meek, 70
Mo. 355, 35 Am. Rep. 427. In Wisconsin, how-
ever, the advice of two physicians is required by
the statute. See Hatchard v. State, 79 Wis. 357.
546 Slattery v. People, 76 Ill. 217.

547 1 East. P. C. 434.

548 1 Hawk. P. C. c. 16, § 2, Beale's Cas. 419. See,
also, 2 Inst. 180; Co. Litt. 123 b.