"§ 294. A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child of which she is pregnant, either,

"1. Prescribes, supplies or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug or substance; or

"2. Uses, or causes to be used, any instrument or other means, is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in county jail for not more than one year.

"§ 295. A pregnant woman, who takes any medicine, drug, or substance, or uses or submits to the use of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is necessary to preserve her life, or that of the child whereof she is preg nant, is punishable by imprisonment for not less than one year, nor more than four years.

66

"§ 296. Any person who endeavors to conceal the birth of a child by any disposition of the dead body of the child, whether the child died

before or after its birth, is guilty of a misde.

meanor.

"§ 297. A person who manufactures, gives or sells an instrument, a medicine or drug, or any other substance, with intent that the same may be unlawfully used in procuring the miscarriage of a woman, is guilty of a felony."

Similar provisions will be found in the statutes of most if not all of the United States.

§ 81. Construction of statutes on the subject.

Under the provisions of such statutes it is not essential to constitute the offense that the woman be quick with child; and in New York, under an indictment for producing abortion of a quick child, it was held that the defendant could properly be convicted, though it should appear that the child was not quick. See also, as to the sufficiency of an indictment under the statute of New York, People v. Davis, 56 N. Y. 95; Monegan v. People, 55 N. Y. 613; People v. Stockham,

Hunt v. People, 3 id.

1 Park. C. R. (N. Y.) 427; 569. It is a misdemeanor, in New York, to attempt to administer drugs to a pregnant woman with intent to produce miscarriage: Lohman v

People, 1 N. Y. 379; 2 Barb. 216; Evans v. People, 49 N. Y. 86; People v. Davis, 56 N. Y. 101; Hunt v. People, 3 Park. C. R. (N. Y.) 569. In New York a misdemeanor is a crime which is not punishable by death or imprisonment in a state prison: See Penal Code N. Y., §§ 5, 6. And it is a misdemeanor in that state to administer drugs to a pregnant female with intent to produce miscarriage: People v. Lohman, 1 N. Y. 379. The female in such a case is not regarded as an accomplice, but rather as a victim : Dunn v. People, 29 N. Y. 523.

And it is not essential, under the New York or other similar statutes, that the defendant accused of administering drugs to produce a miscarriage be present at the time of the taking of the same : State v. Howard, 32 Vt. 380; Watson v. State, 22 Alb. L. J. 318; Reg. v. Wilson, 1 Dears. & B. (Eng.) 127.

§ 82. In case death results from producing.

Under statutes, if not by the common law, if in consequence of the means used to procure an abortion, the death of the woman ensues, the crime is either murder or manslaughter. Under

a former English statute it was held that if a person intending to produce an abortion does an act which causes the death of a quick child, or which causes a child to be born so much earlier than the natural time, that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world, the person who by his misconduct so brings the child into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder; and the mere existence of the possibility that something might have been done to prevent the death would not render it less murder See 43 Geo. III, c. 58; Geo. IV, c. 51, § 14; 2 C. & K. (Eng.) 784.

This would not, of course, be the case where the purpose of the abortion was to save the life of the mother or child. But see more recent English statutes on the subject: 24-25 Vict. ch. 100, §§ 58, 59.

§ 83. The killing of a quick child, or of a woman quick with child, in attempts to produce unlawful miscarriage.

Statutes in most if not all the states of our Union provide that where death results from

procuring an unlawful abortion or an attempt to procure the same, the offending party is guilty. of manslaughter. Thus the Penal Code of New York provides :

66

"§ 190. The willful killing of an unborn quick child, by any injury committed upon the person of the mother of such child, is manslaughter in the first degree.

"§ 191. A person who provides, supplies or administers to a woman, whether pregnant or not, or who prescribes for, or advises or procures a woman to take any medicine, drug or substance, or who uses or employs, or causes to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, quick child of which she is pregnant, is thereby produced, is guilty of manslaughter in the first degree.

or of

any

"§ 192. Manslaughter in the first degree is punishable by imprisonment for not less than five nor more than twenty years."

The penal statutes of various states contain similar provisions.