CHAPTER III.

ABORTIONS.

§ 274. Administering drugs, etc., with intent to produce miscarriage. § 275. Submitting to an attempt to produce miscarriage.

274. Every person who provides, supplies, or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five years.

Abortion.-The offense may be committed at any time during the period of gestation-2 Ohio St. 319; 49 Iowa, 260; and the moment the womb is instinct with embryo life gestation has begun-15 Gray, 187; 9 Mass. 387; 13 Pa. St. 631; 6 Pa. L. J. 29; see 2 Zab. 58. The offense is committed when a person gives medicine to a woman to procure an abortion, whether the drug was likely to produce the abortion or not -22 Minn. 238; see 2 Ind. 617; and it is not necessary that he be present when the medicine is taken-1 Dears. & B. 127.

Any unlawful use of any instrument for the purpose of procuring an abortion, is criminal-39 Cal. 400; 13 Allen, 554; 108 Mass. 461; the intent to commit an abortion must exist, when the means are used; 76 Ill. 217; S. C. 1 Am. Cr. R. 29; the death of the woman is not a necessary ingredient, that of the child being sufficient to make the offense a felony-56 N. Y. 95; it only increases the degree of the crime and the punishment-id. The evidence of the crime is usually drawn from the circumstances-76 Ill. 217; S. C. 1 Am. Cr. R. 29; 40 Md. 633; 121 Mass. 81; 123 id. 242; 126 id. 40; 12 Cox C. C. 463; S. C. 1 Green C. R. 142; a person cannot be convicted on the uncorroborated testimony of the woman alone-39 Cal. 398.

Miscarriage.-Administering to a pregnant woman any drugs, or employing any means to produce a miscarriage, unless necessary to preserve life, is a criminal offense-41 Ind. 303; 2 Camp. 76. To constitute an administering it is not necessary that there should be a delivery by hand-4 Car. & P. 369; but there must be an actual swallowing of the drug-Ryan & M. 114; contra, 22 Minn. 238. Proof of the clandestine manner of administering would tend to prove the intent -56 N. Y. 628; the fact that the substance would not produce a miscarriage is no defense if he employed it with a criminal intent 49 Ind. 260; 22 Minn. 238; and an attempt is indictable though the woman was not pregnant at the time-32 Vt. 380; 2 Ohio St. 319; 11 Gray, 85. See Desty's Crim. Law, § 56 c.

275. Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than one nor more than five years.

See Act of 1880, relating to sale of poisonous substance, Appendix, p. 749.

CHAPTER IV.

CHILD STEALING.

§ 278. Definition and punishment of child stealing.

278. Every person who maliciously, forcibly, or fraudulently takes or entices away any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the State prison not exceeding ten years, or by imprisonment in a county jail not exceeding one year, and a fine not exceeding five hundred dollars.

CHAPTER V.

BIGAMY, INCEST, AND THE CRIME AGAINST NATURE.

§ 281. Bigamy defined.

§ 282. Exceptions.

§ 283. Punishment of bigamy.

§ 284. Marrying a husband or wife of another.

§ 286. Crime against nature.

§ 287. Penetration sufficient to complete the crime.

281. Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy.

Bigamy.-Bigamy is an offense against society-98 U. S. 145. Parties marrying under the legal age of consent, and cohabiting together after attaining legal age, cannot marry again while the first marriage exists-20 Ohio, 1. Such marriage is only voidable-55 Ala. 108; id. 162; and if the minor refuses to consent on arriving at legal age, and ceases to cohabit afterward, such minor may marry again-15 Mich. 193. A marriage contracted through fear may, under some circumstances, be void-44 Ala. 24. A marriage in fact in a foreign jurisdiction is prima facie evidence of a valid marriage-54 N. H. 456; S. C. 1 Am. Cr. R. 34. But if invalid where contracted, it is invalid here--31 Up. Can. Q. B. 182. Yet, a marriage which the law of the place may hold invalid, may, nevertheless, be deemed valid here-25 Wis. 370; 21 Gratt. 800. So it may be held valid though not solemnized by an ordained minister-25 N. Y. 390. It is a civil contract, and does not require the intervention of a clergyman or a magistrate to make it legal-2 Cal. 503; see Civ. Code, § 55; and no particular form is required-2 Cal. 503. An agreement before witnesses, and subsequent cohabitation, is sufficient-25 N. Y. 390.

Second marriages.-The gist of the offense is the entering into a void marriage while a valid one exists-25 N. Y. 390; 34 Mich. 339; S. C. 1 Am. Cr. R. 72; 1 Car. & K. 144; it is an indispensable element-55 Ala. 108; 59 id. 101; and must have been contracted in the State where the indictment is found-2 Parker Cr. R. 195; 1 Pick. 138; 8 id. 433; 113 Mass. 458; 44 Ala. 24; 59 id. 101; but by statute, a continuance in a bigamous state is made indictable wherever a second marriage may have been solemnized-18 Vt. 570; 2 Cush. 553; 3 Head, 544; 12 Minn. 476; 4 Thomp. & C. 77; 2 Parker Cr. R. 192; 5 Hun, 297; but see 32 Ark. 205; id. 565; 55 Ala. 108. The offense is complete when the second marriage is complete, without proof of cohabitation-55 Ala. 108; 81 Pa. St. 428; 2 Ired. 346; although such marriage is invalid by reason of some legal disability of the parties-34 Mich. 339; S. C. 1 Am. Cr. R. 72; 1 Car. & K. 144; but see 10 Cox C. C. 411; id. 474; as a marriage between a negro and a white person-34 Mich. 339; S. C. 1 Am. Cr. R. 72. When one goes through the form of marriage, those aiding and assisting are accessories at the fact-1 Car. & K. 144; see 34 Ga. 275. Ignorance of law

or the advice of a magistrate will not excuse from responsibility-36 N. J. L. 125; 11 Blatchf. 200; id. 374; 27 Mich. 191; 2 Met. 190; 9 Allen, 489; 97 Mass. 117; 98 id. 6. Ignorance of law is no defense when the statute makes the act indictable irrespective of guilty knowledge-68 Me. 30; S. C. 1 Am. Cr. R. 42; and a party cannot avail himself of good faith on the act-id. 98 U. S. 145; 1 Utah, 226; 13 Bush, 318; S. C. 2 Am. Cr. R. 163.

282. The last section does not extend

1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years, without being known to such person within that time to be living; nor,

2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court.

Subd. 1. Absence.-If the party knows the absentee beyond seas to be alive, the exception in the statute will not relieve-38 Miss. 313; and see 6 Allen, 591; 10 id. 196; 7 Cox C. C. 175. Being in another State of the Union is equivalent to being beyond seas-3 Wheat. 541; 14 Peters, 141; 10 Pick. 515; 1 Rawle, 373. See 34 Ga. 407; 50 Md. 161. In North Carolina, an absence of seven years, without knowledge of his being alive, is a defense-2 Ired. 346. In Massachusetts, the legality of the second marriage while the spouse is living does not depend on the ignorance of his being alive or on the honest belief of his death-7 Met. 472. In Pennsylvania, any false rumor circumstantial as to place, time, and mode of death, in appearance well founded, of the death of the other, absent for two years, is a defense-Whart. on Hom. 412.

Subd. 2. Divorce.-If a divorce be such as by the lex fori entitles one to marry again, he cannot be convicted of bigamy-43 Me. 258; 5 Barb. 117; 2 Clark & F. 567. To give validity to a divorce, the complainant at least must be domiciled in the State where it is granted-25 Mich. 247; see 126 Mass. 34; S. C. 2 Am. Cr. R. 612; 10 Mass. 260; 13 Gray, 209; 4 Allen, 134; 1 Johns. 424; 15 id. 121; 45 N. Y. 535; 32 Ga. 653. So, if a party go to a State merely to obtain a divorce, it is void-28 Ala. 12. In Massachusetts, the guilty party cannot marry again-126 Mass. 34; S. C. 2 Am. Cr. R. 612; 1 Pick. 136. He cannot marry a second wife a resident of the State-1 Pick. 136; 8 id. 433; 113 Mass. 458. But he may marry out of the State, unless he goes there to marry and evade the laws-113 Mass. 458; 8 Pick. 433; see 13 Ala. 570; 17 Pa. St. 240; 1 Yerg. 110; 1 Bish. Mar. and Div. § 306; 2 id. 701. If a decree be obtained before the second marriage, it is a good defense; otherwise, if obtained after the marriage-2 Hill, 325. An honest but erroneous belief that a divorce has been granted is no defense-13 Bush, 318; S. C. 2 Am. Cr. R. 163; 65 Me. 20. In Indiana, it is a good defense-46 Ind. 459; but see 56 id. 263. If the defense is divorce, the defendant must prove it-7 Allen 306.

283. Bigamy is punishable by fine not exceeding two thousand dollars, and by imprisonment in the State prison not exceeding three years.

284. Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the pro