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as to make fæticide before quickening to be venial. Thus the Carolina code, from which the old English common law judges drew so largely, punished the killing of a quick fætus with death: but the killing of a child not yet quick, with arbitrary punishment at the discretion of the judge. This distinction, so comments Berner, a very high German authority, zü rests on an error that originated neither with the canonists, nor with the framers of the Germanic law. For the assumption is erroneous that the embryo receives life for the first time during the progress of the pregnancy. Life, by the true view, is kindled in the act of generation, and the embryo is therefore alive from the time of conception. Recent codes, so Berner proceeds, have recognized the erroneousness of the old view, which made quickening essential to the offence. It is true that they correctly make vitality in the embryo essential. There must be an embryo, as an attempt of this class committed on a mere mola does not constitute an offence. And there must be vitality, as the crime cannot be complete if the fætus be already dead.
§ 1225. The true meaning of quickening, and the absurdity of the doctrine that it is the inception of life, is pointedly shown by Orfila, in the recent edition of his very authoritative treatise. a
“ Chez la plupart des femmes le fætus exerce des mouvemens que l'on a appelé actifs ; c'est particulièrement vers la fin du quatrième mois, lorsque les organes de la locomotion jouissent dejà d'une certaine energie, que ces mouvemens sont sensibles ; ils deviennent quelquefois si forts par la suite, qu'on les aperçoit même à travers les vétemens, et que la femme en est réveillée pendant la nuit ; l'homme de l'art parvient souvant à les provoquer en appliquant sur les parois du ventre, la main préalablement trempée dans l'eau froide. Ce signe qui paraitrait au premier abord devoir permettre d'affirmir que la femme est ou n'est pas
si vero feminam LXXX. diebus a tem- mo, postea tenetur de homicidio sepli cessaret ingressu.” (Levit. 12.) cundum legem Moysis vel legem PomGloss. in h. I. : “ quia tot diebus mor- pejam." tuus est ante infusionem animae, sed 25 Lehrbuch des Strafrechts (1871), foetus femineus LXXX. diebus." Gl. p. 424. in L. 4. D. de extraord. crim. (47, 11): a Traité de Médecine Légale, Paris, “ ante XL. dies, quia ante non erat ho- 1848, vol. i. p. 226.
enceinte, presente pourtant beaucoup d'incertitude ; non seulement il y a des femmes qui n'ont senti de pariels mouvemens à aucune époque de la grossesse, mais il en est beaucoup d'autres chez lesquelles des contractions spasmodiques de l'uterus et des intestins simulaient tellement les mouvemens du fætus qu'elles se disaient enceintes."
These views are fully sustained by the result of a very curious investigation before a jury of matrons in England in 1838. 6
§ 1226. It appears, then, that quickening is a mere circumstance in the physiological history of the fætus, which indicates neither the commencement of a new stage of existence, nor an advance from one stage to another; that it is uncertain in its periods, sometimes coming at three months, sometimes at five, sometimes not at all, and that it is dependent so entirely upon foreign influences as even to make it a very incorrect index, and one on which no practitioner can depend, of the progress of pregnancy. There is as much vitality, in a physical point of view, on one side of quickening as on the other; and in a social and moral point of view, the infant is as much entitled to protection, and society is as likely to be injured by its destruction, a week before it quickens as a week afterwards. But if the common law, in making fæticide penal, had in view the great mischief which would result from even its qualified toleration, — e.g. the removal of the chief restraint upon illicit intercourse, and the shock which would thereby be sustained by the institution of marriage and its incidents, — we can have no authority now for withdrawing any epoch in gestation from the operation of the principle. Certainly the restraints upon illicit intercourse are equally removed — the inducements to marriage are equally diminished — the delicacy of the woman is as effectually destroyed — no matter what may be the period chosen for the operation. Acting under these views, the legislatures of Massachusetts and New Jersey, in order to fill up the supposed gap, passed acts making ante-quickening-fæticide individually penal. If, however, as has been argued, no such gap exists, it will be worth while for the courts of those states which have not legislated on the subject, to consider how far an exploded notion in physics is to be allowed to suspend the operation of a settled doctrine of the common law. 8 R. v. Wycherly, 8 C. & P. 265.
$ 1227. It is remarkable that both in Massachusetts and New Jersey, a leading English case on this point was not referred to, where, in an investigation before a jury of matrons, Gurney, B., said, after taking medical counsel, “ Quick with child, is having conceived ; with quick child is when the child is quickened.” This view disposes of all the common law authorities against the indictability of the offence.
§ 1228. In New York, where one statute makes it a misdemeanor to administer drugs, &c., to a pregnant female, with intent to produce a miscarriage; and another statute declares it manslaughter to use the same means with intent to destroy the child, in case the death of such child should be thereby produced; an indictment charging all the facts necessary to constitute manslaughter under the latter statute, except the intent to destroy the child, and alleging only an intent to produce miscarriage, is fatally defective as an indictment for manslaughter, but is good as an indictment for a misdemeanor. d A conviction for a misdemeanor, for administering drugs to a pregnant woman with intent to produce miscarriage, would, it seems, be a bar to a subsequent indictment for manslaughter, for administering the same drugs to the same female, with intent to destroy the child, by which means the death of the child was produced. e
§ 1229. In an indictment for administering medicine to procure abortion, the name of the medicine need not be stated, nor need the medicine be described as noxious.f It is admissible to prove in such a case that ergot, a drug shown to have been administered to the deceased, was popularly supposed to produce abortion, the object being to prove intent.g
If the mother dies in consequence of the operation, the offence is murder at common law, or (if there was no intent to kill her), murder in the second degree under the American statutes.g!
§ 1230. By the Pennsylvania act of May 31, 1781, any person who counsels, advises, or directs a woman “ to kill the child she goes with, and after she is delivered of such a child she kills it, is to be deemed accessary to such murder. h
c R. v. Wycherly, 8 C. & P. 265.
d Lohman v. People, 1 Comst. 379;
Under 1 Vict. c. 85, it is immaterial whether or not the woman was pregnant at the time. i The prisoner was convicted, on an indictment under 6 of 7 Will. 4, and 1 Vict. c. 85, for ad
c ministering and causing to be taken by E. C. certain poison with intent to procure her miscarriage. It appeared that E. C., being pregnant, applied to the prisoner to get her something to procure miscarriage, and that the prisoner did procure a drug, which drug was given by the prisoner to E. C., and taken by her with intent to procure, and did in fact procure miscarriage ; but the taking by E. C. was not in the presence of the prisoner. It was held that the conviction was right, inasmuch as there was " causing to be taken," within the meaning of the statute.j
The same ruling was made where the prisoner, in a conversation with a woman who was pregnant, told her that he knew of something that would get rid of her child. On being asked what it was, he said it was savin. He afterwards bought the woman some savin, and gave her directions how to take it. She took the savin accordingly, and the prisoner called from time to time to inquire the effect. The prisoner also made up into pills a drug which the woman had obtained at his request. After taking the savin and the pills the woman became and continued very ill till she was confined. It was held a causing to be taken, within 7 Will. 4, and 1 Vict. c. 85, s. 6.k At the same time upon an indictment, for supplying a certain “noxious thing, knowing that the same is intended to be used with intent to pro
i R. r. Goodhall, 1 Den. C. C. 187. party, and B., an accessary before For forms of indictments in abortion the fact, under the English statute. see Whar. Prec., as follows:
(209) Administering a potion at com(204) Production of abortion at com- mon law with intent to produce
mon law. First count. By assault abortion. and thrusting an instrument in the (210) Producing abortion in New prosecutor's womb, she being "big, York, 2 R. S. 550, 551, s. 9, 2d. ed. quick, and pregnant.”
(211) Administering medicine under (205) Second count, averring prose- the Indiana statute, with intent to
cutrix to be “ big and pregnant.” produce abortion. (206) Third count, merely averring (212) Attempt to procure abortion by pregnancy in same.
administering a drug, under Ohio (207) Assault on a woman with quick statute.
child, so that the child was brought j R. v. Wilson, 37 Eng. Law & Eq.
forth dead. (At common law.) 605; Dears. & B. C. C. 127; 7 Cox (208) Against A., the principal, for C. C. 190. · producing an abortion by using an k R. v. Farrow, Dears. & B. C. C. instrument on the person of a third 164 ; 40 Eng. Law & Eq. 550.
cure miscarriage, it is necessary to prove that the thing supplied is “noxious.” The supplying “an innoxious” drug, whatever may be the intent of the persons supplying it, is not an offence against that enactment.1
It is not necessary that the intention of employing the drug should exist in the mind of any other person than the person supplying it.m
As has been seen, if the child is already dead, the offence cannot be committed. n
Pregnancy ceases after the child has come forth from the womb of the mother, though still attached by the umbilical cord.o
The woman on whom the abortion has been performed is a competent witness against the defendant, though she were an accomplice. P But the law regards her rather as a victim than an accomplice. And it is not admissible to cross-examine her, when a witness, as to illicit intercourse with third parties. r
Consent of the woman is no defence. 8
Of course it is a defence that the destruction of the child's life was necessary to save that of the mother. t
I R. v. Isaacs, L. & C. 220; 9 Cox p Ante, § 778; Com. v. Wood, 11 C. C. 228.
Gray, 85. m R. v. Hillman, L. & C. 343; 9 9 Dunn v. People, 2 Tiffany, 523. Cox C. C. 386.
r Com. v. Wood, 11 Gray, 85. n Com. v. Wood, 11 Gray, 85; but s Crichton v. People, 6 Parker C. see contra, State v. Howard, 32 Vt. R. 363; ante, § 751 b; though see 380, and cases cited post, under the Smith v. State, 33 Me. (3 Red.) 48. head of "Attempts."
t See ante, $ 90 b. o Com. v. Brown, 14 Gray, 419.