It is only when the mother is found "quick with child," that the sentence is respited till after delivery.1

In a modern case, a distinction was taken by the learned judge upon the circuit, between the terms "quick with child," and "with quick child," and it was said that the former term means simply having conceived. There is no foundation whatever in law for this distinction. The ancient authorities show clearly that the terms are synonymous, both importing that the child had quickened in the womb, and that the period had arrived when the life of the infant, in contemplation of law, had commenced.3

In England, there does not appear to have been any adjudication upon the point now under consideration. But the Supreme Court of Massachusetts have decided that the procuring an abortion, unless the mother be quick with child, is not an indictable offense at the common law.4

Two modern elementary writers upon criminal law, of acknowledged reputation, have given some countenance to the idea, that the mere attempt to procure an abortion is an indictable offense at the common law.5 Neither of them, however, states the principle with confidence, or distinguish between the condition of the child before and after quickening. Both refer to the precedent in Chitty's Criminal Law as the only authority for the proposition. That precedent, as has been seen, does not support the doctrine.6

In a recent American treatise upon criminal law, the proposition, that the procuring of an abortion was indictable at the common law, had been stated, and advocated with much learning.7 The only direct authority cited in support of the doctrine, is the case of the Commonwealth v. Demain. Although in that case the point appears to have been elaborately argued by counsel, it does not appear to have been decided by the court. On the contrary, the court are reported as declaring that the indictment before them sufficiently averred that the party injured was pregnant and quick with child, which was destroyed and killed. The obvious inference would seem to be, that the court regarded the fact, that the child was quick (either by direct averment or necessary implication), as essential to the validity of the indictment. It is difficult to perceive how the court could in any aspect of that case, have sustained the demurrer. The indictment (like the precedent in

1 B. C. 395.

2 Reg. v. Wycherly, 8 C. & P. 262.

Sarah Beyerton's Case, 14 St. Tr. 634;

1 Hale's P. C. 368; 4 B. C. 395.

* Com. v. Parker, 9 Metc. 263; Com. v. Banks, 9 Mass. 388.

51 Russ. on Cr. 540; Roscoe's Crim. Ev. 190.

6 See, also, 1 Lewis' Crim. Law 1, note 6. 7 Whart. Crim. L. 308; Whart. Prec. 168.

8 Decided by the Supreme Court of Pennsylvania, at January term, 1846, and reported in 6 Pa. L. J. 29.

Chitty) charged that the defendant committed an assault upon the woman, and was clearly a good indictment at common law.

We are of the opinion that the procuring of an abortion by the mother, or by another with her assent, unless the mother be quick with child, is not an indictable offense at the common law, and consequently that the mere attempt to commit the act is not indictable. There is neither precedent nor authority to support. If the good of society requires that the evil should be suppressed by penal inflictions, it is far better that it should be done by legislative enactment than that courts should, by judicial construction, extend the penal code or multiply the objects of criminal punishment. We deem it unwise upon this subject to occupy debatable ground. A reasonable doubt should be resolved in favor of the accused.

The indictment is valid; but if upon the trial it appears that the means used to procure the abortion were used with the consent of the mother, the defendant must be acquitted.1

RANDOLPH and OGDEN, Justices, concurred.

ABORTION-CONSENT OF WOMAN A DEFENCE AT COMMON LAW.

COMMONWWEALTH V. PARKER.

[9 Metc. 263; 43 Am. Dec. 396.]

In the Supreme Judicial Court of Massachusetts, March Term, 1845. It is not a Punishable Offense at common law to perform an operation for abortion on a pregnant woman with her consent unless she be quick with child.

Indictment. The first count alleged that the defendant performed an operation upon a certain married woman with intent to cause her to miscarry and bring forth prematurely the child with which she was at the time pregnant, and that the operation had the effect intended. The third count was like the first, except that it charged that another married woman, upon whom the defendant performed a like operation, was at the time of its performance, "quick and pregnant." The other facts appear from the opinion.

Wilmot, for the defendant.

S. D. Parker, for the Commonwealth.

1 This decision induced the Legislature

to amend the Criminal Code, so as to make

the offense in question a crime. Vide Act of March 1, 1849. 266.

By the Court, SHAW, C. J. Without stating particularly the formal grounds of the motions in arrest of judgment and for a new trial it is sufficient to say that they resolve themselves into one question, namely, whether it is an indictable offense at common law to administer a drug or perform an operation upon a pregnant woman with her consent with the intention of causing an abortion and premature birth of the foetus of which she is pregnant, by means of which an abortion is, in fact, caused, without averring and proving that at the time of the administration of such drug or the performance of such operation, such woman was quick with child. The instruction of the judge at the trial was that it was not necessary to aver, or if averred, to prove this fact; and if this instruction was incorrect a new trial ought to be awarded.

We must take care not to confound this case with some others which resemble it in fact but fall within another principle. The use of violence upon a woman with an intent to procure her miscarriage, without her consent, is an assault highly aggravated by such wicked purpose and would be indictable at common law. So when, upon a similar attempt by drugs or instruments, the death of the mother ensues the party making such an attempt, with or without the consent of the woman, is guilty of murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman can not take away the imputation of malice any more than in case of a duel, where in like manner there is the consent of the parties. The case of Commonwealth v. Bangs1 is relied on as a direct authority for the defendant. It is insisted upon, however, on the part of the prosecution that that part of the opinion which states that it must be averred and proved that the woman was quick with child, was obiter dictum and not necessary to the decision.

The report is very short; and as no reasons are assigned we can not certainly infer whether the decision was placed upon that ground. The motion in arrest of judgment was upon two grounds: 1. That no abortion was in fact produced; and 2. That it was not alleged that the woman was quick with child; and the judgment was arrested apparently on both grounds. We are, therefore, inclined to consider it as an adjudication of the point now raised. And the court are of opinion that at common law no indictment will lie for attempts to procure abortion with the consent of the mother until she is quick with child. It is only considered by the ancient common law that the child had a separate and independent existence, when the embryo had advanced to that degree of maturity designated by the terms "quick with child," although to many purposes in reference to civil rights an infant in ventre sa mere is regarded as a person in being. And the

19 Mass. 387.

2 1 Bla. Com. 129.

ancient authorities which speak of this crime as an offense at common law, speak of a case where the woman is quick with child. In 3 Institutes1 Lord Coke says: "If a woman be quick with child and by a potion or otherwise, killeth it in her womb, or if a man beat her, whereby the child dieth in her body and she is delivered of a dead child, this is a great misprision and no murder." And to the same point are the more ancient authorities of Bracton and Fleta. Si sit aliquis mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivum, si puerperium jam formatum vel animatum fuerit, et maxime si animatum, facit homicidium.2

To the same effect are 1 Hawkins,3 and 1 Gabbett's Criminal Law.* This distinction between a woman being pregnant and being quick with child whatever may be the physical theory upon which it was originally founded is well known and recognized in the law. "Life," says Blackstone, "begins in contemplation of law as soon as an infant is able to stir in the mother's womb." This distinction is strongly marked in the statutes of 43 George III.,5 known as Lord Ellenborough's act, the first section of which declares it a capital offense to administer a drug to cause the miscarriage of any woman then being quick with child. And the same statute has another provision declaring the same act to procure the miscarriage of a woman not being quick with child, a felony of a mitigated character. In the case of Rex v. Phillipső which was an indictment on this statute, it was held by that learned judge, Mr. Justice Lawrence, that in the construction of this statute, the words "quick with child” must be taken to be according to the common understanding which was proved to be this: that a woman is not considered to be quick with child, till she has herself felt the child to be alive and quick within her. It is not necessary however to decide in the present case what degrees of advancement in a state of gestation would justify the application of this description to a pregnant woman; because in this case it was not alleged and the court ruled that it was not necessary to prove that she was quick with child.

7

The only authority adduced in support of the prosecution was a precedent in 3 Chitty's Criminal Law, which is an indictment at common law in which it is not alleged that the woman was quick with child. It does not appear that any judgment was rendered on this indictment which was found shortly before the passing of the act of 43 George III.; but as it is inserted as a precedent in a work of good authority it was probably deemed good evidence of the law. But upon a careful consideration of

this precedent it will not be found inconsistent with what we take to be the rule of the common law. The indictment contains several counts and they all charge an assault upon the woman; and there is no intimation that the applications were made with her consent but the conclusion from the averments is otherwise. It is then the case of an assault at common law, with aggravation. But what is more material is that although the woman was not alleged to be quick with child, yet it is averred that she was pregnant and big with child, and the act was done by the defendant willfully, and with intent feloniously, willfully and of his malice aforethought, to kill and murder the child with which she was so big and pregnant. And in other counts it is laid that drugs were administered to her, she being pregnant with another child and with intent to cause and procure her to miscarry and bring forth said child dead, etc. The whole proceeds on the averment that she was then pregnant with a child, then so far advanced as to be regarded in law as having a separate existence, a life capable of being destroyed; which is equivalent to the averment that she was quick with child.1

There being no averment in the first count in this indictment that the woman was quick with child, or any equivalent averment, and the judge who tried the case, having instructed the jury that it was not necessary to prove such averment in the third count, the court are all of opinion that although the acts set forth are in a high degree offensive to good morals and injurious to society, yet they are not punishable at common law and that this indictment can not he sustained.

1. Bribery. - The payment, or offer of payment, of any money, emolument, or thing of value by any person to a sheriff, or other peace officer, for the release of any prisoner in the custody of such sheriff or peace officer, brings the person so offering within the meaning of article 307 of the Penal Code,2 defining the offense of bribery.

2. Consent - Decoy.-If, however, with a view to entrap the defendant, the officer first suggests his willingness to accept a bribe, and thereby originates the criminal intent, the defendant, by acceding, is not brought within the spirit of the said art. 307.

APPEAL from the District Court of Hunt. Tried below before the Hon. J. J. MATHEWS, Special Judge.

1 See Hall v. Hancock, 15 Pick. 257.

Pasc. Dig., art. 1930.