all acts done by any of the other parties before or after the time of his entering into the conspiracy, if such acts be in furtherance of the common design. (People v. Hedge, 284 Ill. 513; Spies v. People, 122 id. 1.) In this case, prior to the actual stealing of the goods, Krause, McGowan and Kelso had entered into a conspiracy for that purpose. When the goods were loaded onto the wagon Kelso sent a message to the plaintiff in error, which the record shows was delivered to him, to meet him for the purpose of furthering the act of stealing the goods. It appears that plaintiff in error, in pursuance of that call, met Kelso, and conspired with him, McGowan and Krause to find a place in which to secrete the goods. This is proof of his participation in the act of the larceny itself. Moreover, in his previous conversation with Kelso plaintiff in error had suggested that Kelso call him by telephone when he had goods which he could steal, and gave him a telephone number which the evidence shows Kelso used and did call plaintiff in error in pursuance of that agreement. The rule is that where two or more persons agree generally to commit a felony, and a felony is committed pursuant to such agreement, all are guilty. (People v. Bond, 291 Ill. 74.) The jury were justified in returning a verdict finding the plaintiff in error guilty of larceny.

It is argued that the court erred in the giving of two instructions, numbered 3 and 6. The latter instructed the jury on the law concerning accessories before the fact, and it is not contended that the law concerning accessories is not correctly stated in the instruction, but the argument is that the instruction assumes that a larceny was committed, and that it therefore invaded the province of the jury. It is well settled that the court may assume facts as proven which the uncontroverted evidence shows to be true. There is no doubt as to the fact of the larceny of these goods. Counsel do not contend in argument that there was any doubt as to that matter, nor was there any such contention

on the trial. It follows that no prejudice arose in this case from the assumption of the fact that the goods were stolen. In this it differs from People v. O'Connor, 295 Ill. 198, cited by plaintiff in error in support of his contention that the instruction was wrong. Instruction No. 3 complained of, informed the jury that property may be averred in an indictment to be the property of either the real owner or any person having special property in it as bailee, and the argument is that the instruction is misleading. While the instruction is not clearly drawn, we are satisfied that it is not open to the objection urged. There was no error in instructing the jury.

It is also contended that the court erred in its conduct of the trial of the case, plaintiff in error contending that the attitude of the court was that of leaning toward the prosecution. While it is a high duty on the part of a court, to be carried out with scrupulous care, to avoid giving any impressions to the jury that would in any way influence their verdict, we are convinced on examination of the record that the action of the court is not open to this criticism.

It is also contended that the court limited the crossexamination of the accomplices in the case, and that the plaintiff in error should have been given the opportunity for a wider range of cross-examination. In support of this objection counsel point out that they sought to show that Dixon, the employer of the defendant Kelso, had signed his bond. In the absence of any proof connecting Dixon with the prosecution of the case or of any promise of immunity on his part to Kelso it was immaterial whether or not he signed the bail bond of Kelso, and would not tend to show the attitude of the State with reference to the prosecution of Kelso on this charge.

On examination of the whole record in this case we are convinced that there is no reversible error in it, and the judgment will be affirmed. Judgment affirmed.

(No. 14014.-Judgment reversed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ANNA M. HEISLER, Plaintiff in Error.

Opinion filed October 22, 1921-Rehearing denied Dec. 9, 1921.

I. CRIMINAL LAW-procuring an abortion and attempting to do so are distinct offenses-variance. To cause a woman to abort or miscarry and to attempt to procure or produce an abortion are separate and distinct offenses, and where an indictment charges the defendant with murder caused by procuring an abortion and the proof shows clearly that no abortion was produced the variance is fatal; but an erroneous conviction under such indictment is not a bar to a prosecution for murder in attempting to produce abortion.

2. SAME-abortion and attempted abortion defined. In criminal law abortion is the expulsion of the fœtus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life, while an attempt to procure an abortion is an unsuccessful attempt to bring forth the fœtus, or, in other words, a missed abortion.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. THEODORE BRENTANO, Judge, presiding.

Q. J. CHOTT, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and JAMES B. SEARCY, (EDWARD E. WILSON, and CLYDE C. FISHER, of counsel,) for the People.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

Plaintiff in error was convicted in the criminal court of Cook county of the crime of murder by abortion. The indictment was in two counts. The first count charged that Anna M. Heisler on the 29th day of May, 1919, made an assault upon the body of Lena Benes, and unlawfully, feloniously and willfully did force, thrust and insert a certain instrument into the private parts and womb of her, the

said Lena Benes, a woman pregnant with child, with intent to produce an abortion and miscarriage, and did cause the abortion and miscarriage of the said Lena Benes, it not being then and there necessary so to do for the preservation of her life, she, the said Anna M. Heisler, well knowing that the use of said instrument would produce such abortion and miscarriage, and that by reason of such abortion and miscarriage the said Lena Benes languished until the 31st day of May, 1919, when she, the said Lena Benes, by reason of said abortion and miscarriage died. The second count charges that the abortion and miscarriage were caused in some way and manner and by some means and device unknown. This writ of error is prosecuted to reverse the judgment of the criminal court committing plaintiff in error to the State penitentiary for a period of twenty-one years, for the reason, among others, that there is no proof in the record that an abortion or miscarriage was produced.

Dr. E. R. LeCount, a physician to the coroner, testified that he made a post-mortem examination of the body of Lena Benes and found all the organs of the body healthy except for changes from blood poisoning. He opened the womb and found a small fœtus of about two months' growth. It was badly decomposed and appeared to have been dead for several days. He found evidence of acute blood poisoning, and it was his opinion that death resulted from this blood poisoning following the attempted abortion.

Section 3 of the Criminal Code provides: "Whoever by means of any instrument, medicine, drug or other means whatever, causes any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother's life, shall be imprisoned in the penitentiary not less than one year nor more than ten years; or if the death of the mother results therefrom, the person procuring or causing the abortion or miscarriage shall be guilty of murder." (2 Harker's Ill. Stat. 1385.)

In medical parlance a distinction is often made between the terms “abortion" and "miscarriage," but in law, and as used in our statute, there is no ground for any distinction. The terms are synonymous. Abortion is the expulsion of the fœtus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life. (1 R. C. L. 70; 1 Corpus Juris, 309; 1 Am. & Eng. Ency. of Law,-2d ed.—186; Mills v. Commonwealth, 13 Pa. St. 631; State v. Crook, 16 Utah, 212, 51 Pac. 1091; Marmaduke v. People, (Colo.) 101 Pac. 337; Commonwealth v. Smith, 213 Mass. 563, 100 N. E. 1010.) Webster defines abortion as the "act of giving premature birth; specifically, the expulsion of the human fœtus prematurely, particularly at any time before it is viable or capable of sustaining life; miscarriage." The Standard Dictionary defines abortion as "the act of bringing forth young prematurely; in a loose use, miscarriage. In the human subject, as usually construed in law and medicine, abortion is the expulsion of the product of conception at any period of gestation before the foetus becomes viable." This same authority defines criminal abortion as "the act of causing abortion or miscarriage in a pregnant woman, except when necessary to preserve her life," and defines missed abortion. as "the retention of a fœtus in the womb after its death, accompanied by indications of abortion." Under this definition the evidence in this case shows clearly that the act which the plaintiff in error is charged with committing is missed abortion, that is, an unsuccessful attempt to bring forth the fœtus.

To cause a woman to abort or miscarry and to attempt to procure or produce an abortion or miscarriage are separate and distinct offenses. (Clark v. People, 224 Ill. 554.) This conviction of the plaintiff in error for murder by abortion would not be a bar to the prosecution of her for murder by an attempt to produce an abortion. She is charged in the indictment with murder by abortion, and the proof shows