Page images
PDF
EPUB

this subject it is a crime to administer any drug, etc., with intent to procure an abortion: Iowa Code, § 3864. Under this provision it has been held that the offense is complete if there be a criminal intent, although the attempt be made before the woman is quick with child, and although the substance used would not produce miscarriage State v. Fitzgerald, 49 Ia. 260.

So under the statutes of Massachusetts, making it a crime for attempting to procure the miscarriage of a woman, it has been held that it is not necessary to the maintenance of an indictment therefor that it be shown that she was in fact pregnant: Com. v. Taylor, 132 Mass. 261.

Under the statutes of Indiana it is a crime to administer any drug, etc., with intent to procure the miscarriage of a pregnant woman, where it is not necessary in order to preserve her life: 2 Ind. Rev. St. 471, § 36 (1876). An indictment under this provision, averring that the defendant unlawfully and willfully employed and used in and upon the body and womb of a pregnant woman a certain instrument called a catheter, with intent to procure a miscarriage, it not being necessary to cause such miscarriage in order to

preserve the life of the woman, was held sufficient State v. Sherwood, 75 Ind. 15.

In a recent case in Illinois it was held that an indictment for an attempt to procure an abortion, which alleged the insertion of "a certain instrument," not describing it, "into the private parts," etc., without adding "and womb," was sufficiently definite: Baker v. People, 105 Ill. 452.

Under the statute of New Jersey, to constitute the crime of attempting to procure a miscarriage, the thing administered or prescribed to procure it must be to a woman pregnant with child, and it must be noxious in its nature: New Jersey Crimes Act, § 75. But it is not necessary to prove that the thing will produce an abortion, nor to allege in the indictment that the mother did not die State v. Gedicke, 43 N. J. L. 86.

In that state the statute does not make it a crime for a woman voluntarily to take drugs or medicines for the purpose of procuring an abortion; and she would not become an accomplice in the crime of another who should administer a potion to her for that purpose, although he would be guilty of a crime: State v. Hyer, 39 N. J. L. 598.

Where an indictment charged the defendant with procuring an abortion resulting in the death of the patient, A. B., and the indictment closed with an allegation as follows: "in manner and form and by the means aforesaid, did then and there kill and murder her, the said A. B.," and objection was made to the indictment on the ground of duplicity, the indictment was sustained, the procurement of the miscarriage constituting the corpus delicti: Taylor delicti: Taylor v. State, 101 Ind. 65.

CHAPTER VI.

CRIMINAL LIABILITY FOR NEGLIGENCE OR MIS

CONDUCT.

§ 92. Statutory provisions on the subject.

In this connection it may be proper to observe that the penal statutes of various states provide generally for the punishment of physicians, surgeons and others for negligence or misconduct in their professional employment or business which causes the death of some person.

Thus the Penal Code of New York provides as follows:

"§ 195. A person who, by any act of negli gence or misconduct in a business or employment in which he is engaged, or by any un

OC

lawful, negligent or reckless act, 'casions the death of a human being, is guilty of manslaughter in the second degree."

[It has been held that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine, and sends it into the

market as such, is liable to all persons who, without fault on their part, are injured by such medicine in consequence of the false label: Thomas v. Winchester, 6 N. Y. 397.]

66

"§ 200. A physician or surgeon, or person practicing as such, who, being in a state of intoxication without a design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon to another person which produces the death of the latter, is guilty of manslaughter in the second degree.

"§ 202. Manslaughter in the second degree is punishable by imprisonment for not less than one year nor more than fifteen years, or by a fine of not more than one thousand dollars, or by both."

§ 93. General criminal liability at common law for malpractice.

It may be observed that at common law, as well as under statutes, a physician or surgeon who, by his culpable negligence in his professional practice, causes the death of his patient, is guilty of manslaughter; and if a person unlawfully engages in the practice of medicine, as where he does so contrary to the statute, and

« PreviousContinue »