the miscarriage of any woman, whether she is or is not with child. R.S.C., c. 162, s. 48. Where the prisoner gave a woman a drug for the purpose of procuring an abortion, and she took it for that purpose, in the prisoner's absence, this was held to be a causing of it to be taken. (1) The drug or other thing administered must be, either in its nature, or by reason of the quantity, noxious; and it would not be sufficient if, not being actually noxious, in itself, it was merely imagined by the defendant that it would have the effect intended. (2) But, if the drug administered actually produces mis-carriage,-and there be no other evidence of its nature,-this, in itself, is sufficient evidence of its being noxious. (3) Where the drug is not noxious in itself and quite innoxious and even useful when administered in small quantities, yet if the quantity administered by the defendant is noxious, that makes the drug so administered a noxious thing. (4) On the other hand, if the drug is such that when administered in large quantities it is noxious, yet, if in the quantity administered by the defendant, it is innoxious, he will not be guilty of administering a noxious thing. (5) In a case where the instrument alleged to have been used to procure an abortion was a quill, which, by its nature, might have been used for an innocent purpose, evidence was allowed to be adduced, in order to prove the intent, showing that the prisoner had, at other times, caused miscarriages by similar means. (6) To constitute the offence of supplying a noxious thing, knowing that it was intended to be used to procure abortion, the thing supplied must be of a noxious character, in itself, or be noxious by virtue of the quantity in which it was supplied. (7) It has been held that, if the drug supplied by the defendant be noxious, and be supplied with the intention of its being used to procure abortion, the offence is complete, although the woman may not have intended to use the drug, and although no one but the defendant may have intended that it should be used to procure a miscarriage; (8) and even although the woman was not, and never had been pregnant. (9) Subsection 2 of article 271, ante, provides that no one shall be guilty of any offence who, to save the mother's life, causes the death of a child before or during its birth. This is meant for the protection of medical men who, acting in good faith, in the course of their professional practice, find it necessary either to induce premature labor, so as to save both mother and child, or, in extreme cases, to kill, during or before labor, the unborn child, in order to save the life of the mother. For instance, there are cases in which, on account of certain deformities, such as what is termed, in medical parlance, an extreme narrowing of the pelvic brim, it may become impossible or very dangerous, even with the aid of forceps, to effect delivery at the end of the full term of gestation, and in which, a skilful and (1) R. v. Wilson, Dears. & B. 127; 26 L. J. (M. C.) 18; R. v. Farrow, Dears. & B. 164. (2) R. v. Isaacs, L. & C. 220. (3) R. v Hollis. 12 Cox 463, (C. C. R.) (4) R. v. Cramp, 5 Q. B. D. 307; 49 L. J. (M. C.) 44. See comments under article 246, ante, p 170. (5) R. v. Hennah, 13 Cox, 547. (6) R. v. Dale, 16 Cox, 703. (7) R. v. Cramp, and R. v. Hennah, supra. (8) R. v. (9) R. v. Hillman, L. & C. 343; 33 L. J. (M. C.) 60. careful medical practitioner may, by inducing premature birth, at seven months, bring forth the child, sometimes alive, with perfect safety to the mother. Medical statistics appear to show that a very small proportion of women die under the operations necessary to induce these premature births, and that many of the children, thus prematurely born, live. One M. Tiguera is mentioned as having collected 280 cases, in which only six proved fatal to the mothers; and Dr. Hoffman is said to have collected 524 cases, in thirty four of which the operations had been repeated three, four or more times; and in 373 of these cases, 250 children were born alive and 123 dead. The terms miscarriage and abortion are used, by medical men, to signify the expulsion of the ovum or child before it is viable; and the term premature labor is used by them to signify the expulsion of the child after it is viable. Ovum is generally used to signify an early stage of infant life, before what is popularly called quickening. It is also called, embryo. Fatus is a word used to signify the fruit of the womb from the period of quickenning until its birth; but, in the later stages, during the seventh, eighth, and ninth months, it is more usual to speak of it as the child. An embryo of three months is usually from two to two and a half inches in length, and about an ounce and a half in weight. A fatus of four months is from five to six inches, in length, and about three ounces in weight. A fœtus of five months is from six to seven inches in length, and from five to seven ounces in weight. At six months a fatus is from nine to ten inches in length, and about a pound in weight; at seven months it is from thirteen to fifteen inches long, and weighs from three to four pounds; at eight months it reaches from fourteen to sixteen inches in length, and weighs from two to five pounds; and at nine months, or at the end of the full term of gestation, the child is from seventeen to twenty one inches long, and varies from five to nine pounds in weight. For a child to be viable, in other words, to be capable of living after its birth, it must have attained a certain degree of development and growth. Seven months' children and those born at eight months are sufficiently common; but there are records of some remarkable cases, (not necessary to be particularized here), of infants born at much earlier stages of gestation. The practical conclusions, arrived at by medical scientists, as to a child's viability, are as follows: 1. Children born at seven months, eight months, and intermediate periods up to term, not only may live, but constantly do so. 2. Life is also possible, though less probable, when the birth takes place at six to seven months. A few survive. 3. Children have been born alive as early as four to five months. At the latter age, or a few days more, one or two have survived. 4. Although, from the first moment of impregnation, the ovum is alive, yet, previous to the fifth month there is no possibility (so far as we know) of their being reared, and before six or seven months, it is very improbable. (1) The Scotch law allows six lunar months, or 168 days, for a child to be both viable and legitimate. The Parliament of Paris, in the case of Cardinal Richelieu, decided that the fetus at five months possessed that capability of living to the ordinary period of human existence which the law of France required for establishing its title to inheritance." The Code Napoleon mentions 180 days, or six calendar months. As, from a medical point of view, the average period, at which a fatus becomes viable, is six months, the term abortion is, medically, usually limited to (1) Wood. and T. For. Med. 749. procuring the expulsion of the contents of the womb, before the sixth month of gestation. But the law makes no such distinction of time. If, in the attempt to procure abortion, or after and in consequence of the abortion being effected, the woman dies, the crime is usually considered as murder, although the accused may not have meant to destroy life. He would now come within the definition of murder contained in article 227d, ante. The law on the subject was laid down by Baron Bramwell in Stadtmühler's case, Liverpool, Winter assizes, 1858, whose remarks are reported as follows:-" If a man, for an unlawful purpose, used a dangerous instrument, or medicine, or other means, and thereby death ensued, that was murder, although he might not have intended to cause death, although the person dead might have consented to the act which terminated in death, and although possibly he might very much regret the termination that had taken place contrary to his hopes and expectations. This was wilful murder. The learned counsel for the defence had thrown on the judge the task of saying whether the case could he reduced to manslaughter. There was such a possibility, but to adopt it would, he thought, be to run counter to the evidence given. If the jury should be of opinion that the prisoner used the instrument not with any intention to destroy life, and that the instrument was not a dangerous one, though he used it for an unlawful purpose, that would reduce the crime to manslaughter. He really did not think that they could come to any other conclusion than that the instrument was a dangerous one, if at all used. Then, if it were so used by the prisoner, the case was one of murder; and there was nothing for the case but a verdict either of murder or of acquittal.” (I) Means of procuring abortion.-Women have been known to employ some of the most extraordinary means to procure abortion: such as violently rolling down hill, throwing themselves downstairs, or out of window, submitting themselves to be laced with extreme tightness, or even to be trampled on and kicked on the abdomen. Tardieu mentions the following case: In the Assize Court of the Loire-Inférieure, it was proved that a peasant, who had seduced his servant, and wished to make her abort, mounted on a strong horse, and put the girl on the same horse, then galloped wildly hither and thither, throwing her down on the ground whilst in full gallop, and this repeatedly. Having tried this twice without success he conceived the horrible idea of applying to her stomach bread just taken from a very hot oven. This means failed like the former, and the poor victim gave birth to a living and well-formed child at term. (2) Amongst the drugs generally used to procure abortion might be included almost every known purgative, and almost every drug or herb which has medicinal properties. The following commonly used substances,--squills, sarsaparilla, guaiacum, aloes, balm, horehound, camomile, wormwood, saffron, borax, mugwort, and juniper, are considered by many medical authorities to be perfectly harmless in this respect; although some have considered that aloes, wormwood, borax, and mugwort possess properties which may be indirectly effective in procuring abortion. It seems that such poisons as arsenic, mercury, sulphate of copper, and cantharides have no special action on the uterus, and that to produce any effect for purposes of abortion they would have to be given in doses almost necessarily fatal. There is some medical evidence that iodide of potassium, yew, penny-royal and oil of rue will cause abortion, and the evidence is still stronger in regard to the efficacy of savine and ergol of rye. Amongst the mechanical instruments and contrivances which have been used in procuring abortion may be mentioned pointed sticks and wooden skewers, syringes, catheters, guarded stillettes, forceps, long knitting needles, and steel (!) Wood. & T. For. Med. 761, 762, 745, et seq. (2) Tardieu Etude Med. Leg. sur l'Avortement, p. 27. claws, the latter being worn on the fingers, for the purpose, as it seems, of penetrating the membranes or tearing the embryo. (1) Proof. It was held in an American abortion case that, any declarations or acts of the defendant tending to show his intention and purpose to produce the abortion are admissible, whether such acts and declarations were prior or subsequent to the particular act charged in the indictment; that the defendant made a subsequent attempt to accomplish the same purpose by different means is admissible to show with what purpose and intent he made the attempt charged in the indictment. as well as to corroborate the evidence of the first attempt; and that a letter written by the defendant, containing ambiguous language, may be received in evidence against him, and its language explained by parol, when it relates to the question at issue. The defendant in the case had been convicted in the Circuit Court of Baltimore county, upon an indictment charging him, with furnishing Rachael Taylor, a pregnant woman, with certain drugs and medecines and with advising and soliciting her to take them for the purpose of producing an abortion. After the state had proved, by the woman Taylor, that the defendant had furnished her with some pills and drops and advised her to take them, saying that they would destroy the child of which she was pregnant, the witness was asked if the defendant had proposed to her any other means of producing the abortion; and she answered, that he had taken her to a doctor in Baltimore and told her to go through an operation to destroy the unborn child, but that she refused to submit to such operation. To this question and answer the defendant objected and on the court allowing them the defendant excepted. The State then put in evidence a letter, from the prisoner to the woman Taylor, in which he said, "I made you a fair proposition, which if you had not spurned we would have been the same as ever," &c., and asked her what was the proposition referred to, upon which she answeared that it was a proposition by the defendant that she should be operated upon. The defendant also objected to this question and answer, and, on same being allowed, he excepted. Upon these two exceptions the case came before the Maryland Court of appeals; and, in rendering judgment in that Court, Stone, J. said, as to the first exception; "The gravamen of the offence charged against the accused was his purpose and intention to produce an abortion upon the body of Rachael A. Taylor, and he is charged with endeavoring to effect that purpose by furnishing her with drugs, and advising her to take them. Any declarations or acts of the defendant tending to show his intention and purpose to produce such abortion are admissible, whether made prior or subsequent to the particular act charged in the indictment. That he made a subsequent attempt to accomplish the same purpose by different means, is admissible to show with what purpose and intent he made the attempt charged in the indictment, as well as to corroborate the evidence of the first attempt. In the case of King v. Ellis, (2) the prisoner, a shopman, was indicted for robbing his employer's money-drawer of a particular sum of money on a particular day. At the trial, evidence was admitted that the prisoner had robbed the drawer at other times Upon review, the court, Bayley, J., delivering the opinion, said : · Generally speaking, it is not competent to a prosecutor to prove a man guilty of one felony by proving him guilty of another unconnected felony; but where several felonies are connected together and form part of one entire transaction, then the one is evidence of the character of the other.' Holroyd said in the same case: Upon an indictment for robbing the prosecutor of a coat, the robbery having been committed by the prisoner threatening to charge the prosecutor with an unnatural crime, I received evidence of a second ineffectual attempt to obtain a one pound note from the prosecutor by similar threats, but reserved the point for the judges, and they were of opinion that the evidence was admissible to show that the prisoner was guilty of the former transaction. The proof of a second attempt to accomplish • (1) Wood. & T. For. Med. 753, el seq. (2) R. v. Ellis, 6 B. & C. 145. the same purpose is, therefore, we think, clearly admissible to prove the purpose in the former attempt, and the ruling of the court on the first exception must be affirmed." In reference to the second exception the learned judge said :— "Declarations of the accused, as to the crime with which he is charged, if voluntary, are always admissible against him. This letter is nothing but a declaration made by the prisoner. It refers to a proposition, but does not say what it was; and it was entirely competent to shew by parol, what the proposition was, if it applied to the case. The ruling on this second exception, also, must therefore be affirmed." (1) In an Iowa case, where the testimony of the woman upon whom the abortion was attempted was to the effect that she was with child by the accused, and that, upon telling him of her condition, he gave her two bottles of "Dr. Lyon's Spanish Drops," which he said "would be sure to bring her all right, and which, when she took it, made her "dizzy" and sick, and where the accused, when testifying in his own behalf, admitted having had illicit intercourse with the woman, who was a servant in his family, and the giving of the medicine, but claimed that he did not know that she was pregnant, that he gave it to her only to restore regular menstruation,-it was held that the evidence was sufficient to support a conviction. (2) In the State of Wisconsin, (whose laws make it manslaughter, in case of the death of either child or mother), to administer to a pregnant woman any drug or other substance, or to employ any instrument or other means, with intent thereby to destroy the child, unless the operation is necessary to preserve the life of the mother, or has been advised by two physicians to be necessary for that purpose, it was held, that, the fact that one of the defendants, who was a physician, thought that the operation was necessary to save the life of the mother, was no defence where the evidence showed that it was in fact unnecessary; that, as the evidence showed that defendant operated with a knife on the womb of a healthy woman nineteen years old, so that she was delivered of a partly grown child, and was then attacked with peritonitis, of which she died, an inference that the operation was not necessary to save her life was warranted; that the fact that the woman had threatened to commit suicide unless she could be relieved of the child with which she was pregnant, did not show such a necessity to perform the operation in order to save her life as was contemplated by the statute; that an instruction, that defendants must show beyond a reasonable doubt that they had the advice of two physicians that the operation was necessary to save the life of the mother, is harmless error, where defendants have introduced no evidence whatever that they had such advice, this being a fact peculiarly within their knowledge, whose non-existence it is practically impossible for the state to show; and that, the defendants being husband and wife, evidence that the wife, in the absence of the husband, offered to produce the abortion for the deceased, and stated that she had helped other women out of similar trouble, is admissible to show that she acted without the coercion of her husband. The facts as established in evidence were, briefly stated, as follows: that Minnie Beardsley, being pregnant, applied to Dr. Hatchard to procure an abortion upon her; that he administered medicine to her, aud operated upon her womb three times with a long sharp instrument for that purpose; that she was a healthy woman, nineteen years of age; that Mrs. Hatchard had previously offered to perform the operation, and voluntarily assisted her husband in doing so each time; that a few days after the last operation Minnie was delivered of a partly grown female child; that she was immediately attacked with inflammation of the bowels or peritonitis, and died thereof the next day succeeding her delivery, and that her disease was caused by such operations upon her person. (3) (1) Lamb v. State, S. C., 9 East. Rep. 283 : 9 Cr. L. Mag. 338. (2) State v. Montgomery, 33 N. W. Rep. 143; 9 Cr. L. Mag. 712. (3) Hatchard v. State (Wis.), 48 N. W. Rep. 380; 13 Cr. L. Mag. 566, 620. |