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Opinion of the Court, per ALLEN, J.
(1 R. S., 661, § 8.) And by the act under consideration, it is made manslaughter in the second degree to cause the death of the child in an attempt to procure a miscarriage.
The indictment does not charge that the child or children with which Ann O'Neill was pregnant, had, at the time of the alleged offence, quickened in the womb. In other words, it is not charged that she was pregnant with a quick child, and there was no evidence that the child had quickened. The judge, in response to an inquiry by the prisoner, charged that it was immaterial whether the child was then quick, and that it was enough that she was pregnant; and that an abortion, in any stage of pregnancy, was manslaughter in the second degree.
A woman is "quick with child" from the period of conception and the commencement of gestation, but is only "pregnant with a quick child" when the child has become quickened in the womb. (Regina v. Wycherley, 8 C. & P., 262.) It was assumed by the judge and the conviction was had upon the theory that the offence, under the statute, would be consummated by the destruction of the foetus at any time during pregnancy.
A miscarriage can be effected at any time after actual conception; and if the death of the woman results from an attempt to produce it by any of the acts and means mentioned in the statute, the offence is complete.
There was no evidence given upon the trial as to the commencement of life in the child or the character or degree of vitality at the different periods of gestation. But it may be assumed that the claim of the physiologist is true, that life exists from the first moment of conception. And it has been well settled, from a very early period, that certain civil rights attach to the child from the first, and that legal consequences result from pregnancy before actual quickening. (1 Bl. Com., 129.) But it is life in embryo, and recognized in the interests of humanity in some cases, and in others in the interest of the child thereafter to be born, and in respect to succession of estates.
SICK ELS-VOL. IV.
Opinion of the Court, per ALLEN, J.
But until the period of quickening there is no evidence of life; and whatever may be said of the foetus, the law has fixed upon this period of gestation as the time when the child is endowed with life, and for the reason that the fœtal movements are the first clearly marked and well defined evidences of life. (Dean's Med. Jur., 129.)
Although there may be life before quickening, all the authorities agree that a child is not "quick" until the mother has felt the child alive within her. "Quick" is synonymous with "living," and both are the opposite of "dead.” The woman is not pregnant with a living child until the child has become quick. If the child is a living child from the instant of conception, then all the authorities, medical and legal, are sadly at fault in their attempts to distinguish between mere pregnancy and pregnancy with a quick child, and legislators have been laboring under the same hallucination in legislating upon the subject, for all the acts passed in reference to abortion in this country and in England recognize the fact that the child does "quicken," that is, become endowed with life, at a certain period, longer or shorter, after conception, and that there is a period during gestation when, although there may be embryo life in the fœtus, there is no living child. (1 Russ on Crimes, 672; Am. Cr. Law, § 1214 and seq.)
Death is the opposite of life; it is the termination of life, and death cannot be caused when there is no life. There must be a living child before its death can be produced. It is not the destruction of the foetus, the interruption of that process by which the human race is propagated and continued, that is punished by the statute as manslaughter, but it is the causing the death of a living child.
Blackstone says, life begins, in contemplation of law, as soon as an infant is able to stir in the mother's womb. (1 Bl. Com., 129.) It ceases at death. (Commonwealth v. Parker, 9 Met., 263; State v. Cooper, 2 Zab. [22 N. J.], 52.) The distinction is not only recognized but distinctly affirmed in the cases in which convictions for causing the miscarriage of a woman, before the child has quickened, have been sus
Dissenting opinion, per GROVER, J.
tained, and the convictions have been for offences clearly distinguishable from the statutory offence of manslaughter created by the act of 1869. Mills v. Commonwealth (13 Penn. St. R., 631) was a conviction for an attempt to procure abortion, and there was no averment that the child had quickened, and it was held that such averment was unnecessary. The judge said it was not the murder of a living being that constituted the offence, but the destruction of gestation by wicked means and against nature. He speaks of the womb as "instinct with embryo life" after gestation has begun, but recognizes the fact that there is no living child who can be killed, whose life can be taken from it, until the period of quickening. It was error to charge that the death of a child could be caused or produced before it had given evidence of life, had become "quick" in the womb, and that the crime of manslanghter under the statute could be predicated of the destruction of the foetus before that period.
For this error of the court the judgment of the Supreme Court and of the Sessions should be reversed and a new trial granted.
GROVER, J. (dissenting). The circular was properly received in evidence. The testimony authorized the jury to presume that the defendant had received the envelope, placed by the witness in the post-office, directed to him. (1 Greenleaf's Evidence, § 40.) This envelope inclosed the one in which the circular was received, and which the witness had inclosed addressed to herself in the one addressed to the defendant before mailing the latter. The presumption being that the envelope inclosing the circular was received by the defendant, and this envelope having been mailed to the witness with the circular inclosed therein, the jury were authorized further to presume that this was done by the defendant or under his authority. Besides, the witness, after the circular was received in evidence, testified that in a conversation with the defendant at his office, after she received the circular, she spoke of having received it, and that she was thereby induced to come
Dissenting opinion, per GROVER, J.
there, to which the defendant made no reply. This was in effect an admission of the defendant that he had sent the cir cular to the witness, and would constitute a complete answer to the exception, even if well taken at the time the circular was received in evidence. There was no fatal misnomer in the indictment. The evidence showed that the prosecutrix, at the time the indictment was found, and for some time prior thereto, had adopted the name of Ann O'Neill, and was known by that name only by the persons where she had been living. This identified the person intended with entire certainty, and fully protected the defendant against the danger of another prosecution founded upon the same transaction. The testimony of Youngblood was competent. The defendant had testified that, while in custody upon this charge, he had been called upon by a person who had informed him in substance that the matter could be settled upon the payment by him of a large sum of money. Upon crossexamination, he testified that Youngblood was the person who made such a proposition. Whether any person connected with the prosecution had made attempts to extort money from the defendant was not a question immaterial to the issue. While it did not bear directly upon the question of his guilt or innocence, it did so indirectly by its effect upon the credibility of the witnesses introduced in support of the prosecution. It was proper, therefore, to repel this effect by his testimony, and this was done by showing by him that he had never made any such proposition to the defendant. The judge was right in not receiving the verdict first presented by the jury. That was defective, and no judgment could have been given thereon. It was therefore proper to send the jury out for further deliberation, under proper instructions as to the verdict necessary to a final determination of the case. The judge correctly held, that the defendant could be legally convicted upon the indictment of an attempt to commit the offence charged therein, in case the evidence showed that he had made such attempt, and that he had failed to perpetrate the crime. (2 R. S.,
Dissenting opinion, per GROVER, J.
§§ 27, 702.) This brings us to the important question in the case. That is, whether the evidence authorized the conviction of the defendant of an attempt to commit the crime charged in the indictment. That crime was manslaughter in the second degree, charged to have been committed by a violation of section 1, of chapter 631, volume 2, 1502, Laws of 1869, which provides that any person who shall administer to any woman with child, or prescribe for any such woman, or advise or procure her to take any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with intent thereby to produce the miscarriage of any such woman, unless the same shall have been necessary to preserve her life, shall, in case the death of such child or of such woman be thereby produced, be deemed guilty of manslaughter in the second degree. Under this section, it is entirely clear that a person guilty of the commission of the acts thereby prohibited, which result in the death of the woman, or of a quick child of which she is pregnant, may be convicted of manslaughter in the second degree. It is equally clear that a person committing such acts with the intent to produce the miscarriage of a woman pregnant with a quick child, and thereby cause its death, may be convicted of an attempt to commit such offence, although the acts may fail to produce the effect intended, that is, the miscarriage of such woman, and are not followed by the death of either the mother or the child. The word miscarriage is used in the statute to designate a premature delivery, including such where it is impossible for the young to survive; although the word may, also, include cases where there is such a probability. The evident intention of the section is to prevent all attempts to produce the miscarriage of a pregnant woman, unless such miscarriage is necessary to the preservation of her life. It will be observed that the section is silent as to any intention of producing the death of the woman or of the child. If the acts were perpetrated with intent to effect the death of the woman and produced that result, the crime would be murder