CHAPTER II.

ABANDONMENT AND NEGLECT OF CHILDREN.

$ 270. Omitting to provide child with necessaries.
§ 271. Deserting child.

§ 272. Disposing of child for mendicant business.

270. Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law, to furnish necessary food, clothing, shelter, or medical attendance for such child, is guilty of a misdemeanor.

Duty of parents.-A father is penally responsible for a neglect to supply food and clothing to his child-23 N. H. 355; 1 Den. C. Č. 366; 8 Car. & P. 611; 4 Cox C. C. 455; 5 id. 275; 10 id. 569; 3 Car. & K. 123; but if a parent has no means to support his child, his omission to do so is not indictable-8 Q. B. 959; 10 Cox C. C. 569; 12 id. 16; 5 id. 339. The conscientious error of judgment in matters of medical treatment is not punishable at common law-10 Cox C. C. 530; so a conscientious conviction that God would heal a sick child, may be a defense on negligence of parental duty-10 Cox C. C. 530. A mother is not criminally liable for neglect to provide a midwife for her daughter on confinement with a bastard child-9 Cox C. C. 123; unless there be a legal duty to supply one-9 Cox C. C. 123; 3 Aleyn, 132; and she must have taken exclusive charge-9 Cox C. C. 123; 7 Car. & P. 277; 8 id. 611.

See Civil Code, §§ 193-215, acts relating to abandoned children, 1874, Appendix, p. 726; 1878, for protection of children, Appendix, p. 732; 1878, mendicant business, Appendix, p. 733.

271. Every parent of any child under the age of six years, and every person to whom any such child has been confided for nurture or education, who deserts such child in any place whatever, with intent wholly to abandon it, is punishable by imprisonment in the State prison not exceeding seven years, or in a county jail not exceeding one year.

At common law.-To desert a helpless child with intent to kill is murder-2 Camp. 640; Car. & M. 164; 2 Car. & K. 864; 6 Cox C. C. 140; and manslaughter, if death ensues simply from the negligence-4 Cox C. C. 455; 2 Car. & K. 864; Dears. 453; 5 Cox C. C. 339; 10 id. 547; id. 569; 6id. 140; 2 Camp. 640; and so of death from unjustifiable expos ure to the weather-2 Car. & K. 784.

272. Any person, whether as parent, relative, guardian, employer, or otherwise, having in his care, custody,

or control, any child under the age of sixteen years, who shall sell, apprentice, give away, let out, or otherwise dispose of any such child to any person, under any name, title, or pretense, for the vocation, use, occupation, calling, service, or purpose of singing, playing on musical instruments, rope walking, dancing, begging, or peddling, in any public street or highway, or in any mendicant or wandering business whatsoever, and any person who shall take, receive, hire, employ, use, or have in custody, any child for such purposes, or either of them, is guilty of a misdemeanor. [In effect March 3d, 1876.]

CHAPTER III.

ABORTIONS.

§ 274. Administering drugs, etc., with intent to produce miscarriage. § 275. Submitting to an attempt to produce miscarriage.

274. Every person who provides, supplies, or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five years.

Abortion.-The offense may be committed at any time during the period of gestation-2 Ohio St. 319; 49 Iowa, 260; and the moment the womb is instinct with embryo life gestation has begun-15 Gray, 187; 9 Mass. 387; 13 Pa. St. 631; 6 Pa. L. J. 29; see 2 Zab. 58. The offense is committed when a person gives medicine to a woman to procure an abortion, whether the drug was likely to produce the abortion or not -22 Minn. 238; see 2 Ind. 617; and it is not necessary that he be present when the medicine is taken-1 Dears. & B. 127.

Any unlawful use of any instrument for the purpose of procuring an abortion, is criminal-39 Cal. 400; 13 Allen, 554; 108 Mass. 461; the intent to commit an abortion must exist, when the means are used; 76 Ill. 217; S. C. 1 Am. Cr. R. 29; the death of the woman is not a necessary ingredient, that of the child being sufficient to make the offense a felony-56 N. Y. 95; it only increases the degree of the crime and the punishment-id. The evidence of the crime is usually drawn from the circumstances-76 Ill. 217; S. C. 1 Am. Cr. R. 29; 40 Md. 633; 121 Mass. 81; 123 id. 242; 126 id. 40; 12 Cox C. C. 463; S. C. 1 Green C. R. 142; a person cannot be convicted on the uncorroborated testimony of the woman alone-39 Cal. 398.

Miscarriage.-Administering to a pregnant woman any drugs, or employing any means to produce a miscarriage, unless necessary to preserve life, is a criminal offense-41 Ind. 303; 2 Camp. 76. To constitute an administering it is not necessary that there should be a delivery by hand-4 Car. & P. 369; but there must be an actual swallowing of the drug-Ryan & M. 114; contra, 22 Minn. 238. Proof of the clandestine manner of administering would tend to prove the intent -56 N. Y. 628; the fact that the substance would not produce a miscarriage is no defense if he employed it with a criminal intent-49 Ind. 260; 22 Minn. 238; and an attempt is indictable though the woman was not pregnant at the time-32 Vt. 380; 2 Ohio St. 319; 11 Gray, 85. See Desty's Crim. Law, § 56 c.

275. Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than one nor more than five years.

See Act of 1880, relating to sale of poisonous substance, Appendix, p. 749.

CHAPTER IV..

CHILD STEALING.

§ 278. Definition and punishment of child stealing.

278. Every person who maliciously, forcibly, or fraudulently takes or entices away any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the State prison not exceeding ten years, or by imprisonment in a county jail not exceeding one year, and a fine not exceeding five hundred dollars.