Quickening must be shown under some of the statutes,28 but under most of them it is not an essential element of the offense.29 A woman is said to be pregnant with a quick child, or quick with child, when the motion of the fetus becomes perceptible to her, usually about the middle of the period of pregnancy,30 § 363. Dead fetus. Under some of the statutes it has been held to be no defense that the fetus was dead when the prohibited acts were committed,31 while in other jurisdictions no offense is committed 66 28 The word "child" as used in the provision of the Georgia code punishing any person who shall administer "to any woman pregnant with child,” any medicine, etc., with intent thereby to destroy such child,'' means a quick child. Barrow v. State, 121 Ga. 187, 48 S. E. 950; Sullivan v. State, 121 Ga. 183, 48 S. E. 949; Taylor v. State, 105 Ga. 846, 33 S. E. 190. See also § 360, supra. 29 Arkansas. Davis V. State, 96 Ark. 7, 130 S. W. 547; State v. Reed, 45 Ark. 333. Florida. Eggart v. State, 40 Fla. 527, 25 So. 144. Idaho. State v. Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 Am. St. Rep. 252. Iowa. State v. Stafford, 145 Iowa 285, 123 N. W. 167; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148. Kansas. State v. Harris, 90 Kan. 807, 136 Pac. 264, 49 L. R. A. (N. S.) 580. Maine. Smith v. State, 33 Me. 48, 54 Am. Dec. 607. Massachusetts. Com. v. Wood, 11 Gray (77 Mass.) 85. Michigan. People v. Abbott, 116 Mich. 263, 74 N. W. 529. Nebraska. Edwards v. State, 79 Neb. 251, 112 N. W. 611. New Jersey. State v. Loomis, 90 N. J. L. 216, 100 Atl. 160, aff'g 89 N. J. L. 8, 97 Atl. 896; State v. Wilson, 79 N. J. L. 241, 75 Atl. 776, aff'd 80 N. J. L. 467, 78 Atl. 144; State v. Murphy, 27 N. J. L. 112. North Dakota. State v. Belyea, 9 N. D. 353, 83 N. W. 1. Ohio. State v. Tippie, 89 Ohio St. 35, 105 N. E. 75, aff'g 34 Ohio Cir. Ct. 203; Wilson v. State, 2 Ohio St. 319. Oregon. State v. Atwood, 54 Ore. 526, 102 Pac. 295, 104 Pac. 195, 21 Ann. Cas. 516. Texas. Gray v. State, 77 Tex. Cr. 221, 178 S. W. 337. Vermont. State v. Howard, 32 Vt. 380, 78 Am. Dec. 609. In Missouri if the child is quick and dies, it is manslaughter, but if the child is not quick and the woman does not die, it is abortion. State v. Hawkins, Mo. 210 S. W. 4. 30 Georgia. Barrow v. State, 121 Ga. 187, 48 S. E. 950; Sullivan v. State, 121 Ga. 183, 48 S. E. 949. Kansas. State v. Patterson, 105 Kan. 9, 181 Pac. 609. Kentucky. Mitchell v. Com., 78 Ky. 204, 39 Am. Rep. 227. Maine. Smith v. State, 33 Me. 48, 54 Am. Dec. 607. New York. Evans v. People, 49 N. Y. 86. "Vitalized" is not synonymous with quick, but means endowed with life, not dead. An embryo is vitalized before quickening. State v. Patterson, 105 Kan. 9, 181 Pac. 609. 31 Com. v. Surles, 165 Mass. 59, 42 ! under such circumstances.32 32 Some of the statutes require that the woman be pregnant with a vitalized fetus, which means that it must be alive.83 34 § 364. Means employed-In general. Generally the offense may be committed either by means of drugs or instruments, and most of the statutes punish the use of any means whatever with intent to procure an abortion or miscarriage, or where such a result actually follows.35 A person uses an instrument or other means when he furnishes such instrument or means to be applied for the forbidden purpose. 36 And a person causes a drug to be taken where he procures it and gives it to N. E. 502; State v. Howard, 32 Vt. 380, 78 Am. Dec. 609. A statute punishing "whoever, with intent to procure the miscarriage of a woman, "administers drugs or uses instruments, etc., "if the woman either miscarries or dies in consequence thereof," applies although the fetus is dead. State v. Tippie, 89 Ohio St. 35, 105 N. E. 75, aff'g 34 Ohio Cir. Ct. 203. 32 Tonnahill v. State, 84 Tex. Cr. 517, 208 S. W. 516; Link v. State, 73 Tex. Cr. 82, 164 S. W. 987. In Maryland the statute excepts the production of abortion by a regular practitioner of medicine when, after consulting with one or more respectable physicians, he shall be satisfied that the fetus is dead. Hays v. State, 40 Md. 633. 33 Dixon v. State, 46 Neb. 298, 64 N. W. 961. And see State v. Patterson, 105 Kan. 9, 181 Pac. 609. 34 See the statutes of the various states and the following cases: Johnson v. People, 33 Colo. 224, 80 Pac. 133, 108 Am. St. Rep. 85; Dougherty v. People, 1 Colo. 514; Diehl v. State, 157 Ind. 549, 62 N. E. 51; Com. v. Sinclair, 195 Mass. 100, 80 N. E. 799, 11 Ann. Cas. 217; People v. Van Zile, 143 N. Y. 368, 38 N. E. 380, rev'g 73 Hun 534, 26 N. Y. Supp. 390; Tabler v. State, 34 Ohio St. 127; State v. Morrow, 40 S. C. 221, 18 S. E. 853; Smartt v. State, 112 Tenn. 539, 80 S. W. 586; Moore v. State, 37 Tex. Cr. 552, 40 S. W. 287; State v. Gaul, 88 Wash. 295, 152 Pac. 1029. The fingers are an instrument within the meaning of the statute. Shaw v. State, 73 Tex. Cr. 337, 165 N. W. 930. 35 See the statutes of the various states and the following cases: State v. Bly, 99 Minn. 74, 108 N. W. 833; State v. Owens, 22 Minn. 238; Gray v. State, 77 Tex. Cr. 221, 178 S. W. 337 A statute punishing the administering of "any medicine, drug, or substance whatsoever," or the use of "any instrument or means whatsoever," includes all means used for the prohibited purpose. The doctrine of ejusdem generis will not be applied so as to confine the means to those kindred to the giving of drugs and the use of instruments. State v. Miller, 90 Kan. 230, 133 Pac. 878, Ann. Cas. 1915 B 818. 36 Jones v. State, 70 Md. 326, 17 Atl. 89, 14 Am. St. Rep. 362. It is not necessary that he perform an operation in person therewith. State v. Moothart, 109 Iowa 130, 80 N. W. 301. a woman intending that she shall take it, and she takes it, though in his absence.37 A person administers a drug when he furnishes, or gives, or provides, or supplies it for the forbidden purpose.38 It is not necessary that he give it to the woman personally, but it is sufficient if he sends it to her by mail,39 or by a messenger,40 nor need he be present when she takes it.41 It has been held that to warrant a conviction for administering a drug, the woman must actually take it into her stomach.42 And merely soliciting a woman to take drugs is not using or causing them to be used unless she actually takes them. But generally the actual taking of the drugs is not necessary under statutes punishing anyone who advises or prescribes or procures drugs for the prohibited purpose.44 And an attempt to produce a miscarriage may be committed whether the intended means are used or taken or not.45 § 365. - Noxious substances. At common law 46 and under some of the statutes 47 if drugs or similar substances are used, they must be noxious in character. But this is not necessary under statutes 37 Reg. v. Wilson, 7 Cox C. C. 190. A person who furnishes a woman with a drug and urges and directs her to take it for the purpose of producing an abortion, which she does, is guilty of using and causing it to be used, though he is not present when she takes it. Jones v. State, 70 Md. 326, 17 Atl. 89, 140 Am. St. Rep. 362. 38 Arkansas. Burris v. State, 73 Ark. 453, 84 S. W. 723. Delaware. State v. Jones, 4 Pennew. (Del.) 109, 53 Atl. 858. Indiana. McCaughey v. State, 156 Ind. 41, 59 N. E. 169. Iowa. State v. Stafford, 145 Iowa 285, 123 N. W. 167; State v. Moothart, 109 Iowa 130, 80 N. W. 301. Missouri. State V. Finley, 193 Mo. 202, 91 S. W. 942. A person who gives a woman drugs with instructions not to use them until she hears from him, is not guilty although she takes them and miscarries in consequence, where she takes them in his absence and with out his knowledge, and without any further instructions from him. Tonnahill v. State, 84 Tex. Cr. 517, 208 S. W. 516. 39 State v. Moothart, 109 Iowa 130, 80 N. W. 301. 40 Burris v. State, 73 Ark. 453, 84 S. W. 723. 41 McCaughey v. State, 156 Ind. 41, 59 N. E. 169. 42 Robbins v. State, 8 Ohio St. 131. 43 Lamb v. State, 67 Md. 524, 10 Atl. 208, 298. 44 See § 374, infra. 45 State v. Moothart, 109 Iowa 130, 80 N. W. 301. 46 State v. Crews, 128 N. C. 581, 38 S. E. 293. 47 Johnson v. People, 33 Colo. 224, 80 Pac. 133, 108 Am. St. Rep. 85; Dougherty v. People, 1 Colo. 514; Eggart v. State, 40 Fla. 527, 25 So. 144; Reg. v. Cramp, L. R. 5 Q. B. D. 309; Reg. v. Hollis & Blakeman, 12 Cox C. C. 463; Reg. v. Wilson, 7 Cox C. C. 190. which use the words "any drugs or substance whatever," or the like, without requiring it to be noxious.48 To render a drug or substance noxious or destructive it is not necessary that it be poisonous as that term is commonly understood,49 or that it be capable of actually producing an abortion,50 but it is sufficient if it is unwholesome and might probably occasion injury or derangement of the system to a pregnant woman.51 A thing which will produce a miscarriage is noxious.52 But a thing which will produce no effect other than a slight disturbance in the stomach is not.58 A thing may be noxious and within the statute when administered in large quantities, though a small quantity of it would not be.54 Whether a particular drug or substance is noxious or destructive is a question of fact to be determined by the jury upon the evidence before them.55 § 366. Efficacy to produce intended result. Under many of the statutes it is not necessary that the means used be of a character likely or calculated to produce the intended result,56 or actually capable of doing so.57 But some of the statutes punishing attempts require that the means used be calculated to produce an abortion.58 48 See the statutes of the various states, and the following cases: State v. Stafford, 145 Iowa 285, 123 N. W. 167; State v. Shaft, 166 N. C. 407, 81 S. E. 932, Ann. Cas. 1916 C 627; State v. Crews, 128 N. C. 581, 38 S. E. 293. Under a statute using the words "any poison, drug or medicine or noxious thing," an indictment alleging that the accused advised or directed the woman to take certain drugs need not allege that they were noxious in character. State v. Mandeville, 89 N. J. L. 228, 98 Atl. 398, aff'g 88 N. J. L. 418, 96 Atl. 398. 49 Dougherty v. People, 1 Colo. 514. 50 See § 366, infra. 51 Dougherty v. People, 1 Colo. 514. 52 Reg. v. Hollis & Blakeman, 12 Cox C. C. 463. 53 Reg. v. Perry, 2 Cox C. C. 223. 54 Oil of juniper. Reg. v. Cramp, L. R. 5 Q. B. Div. 307. 55 Dougherty v. People, 1 Colo. 514. 56 State v. Miller, 90 Kan. 230, 133 Pac. 878, Ann. Cas. 1915 B 818; State v. Owens, 22 Minn. 238. 57 Dougherty v. People, 1 Colo. 514; State v. Stafford, 145 Iowa 285, 123 N. W. 167; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; State v. Shaft, 166 N. C. 407, 81 S. E. 932, Ann. Cas. 1916 C 627; State v. Crews, 128 N. C. 581, 38 S. E. 293. The fact that drugs used failed of their purpose because not given in large enough quantities is no defense. State v. Mandeville, 88 N. J. L. 418, 96 Atl. 398, aff'd 89 N. J. L. 228, 98 Atl. 398. It is immaterial whether an instrument used was the right kind of an instrument to produce an abortion, or whether it actually entered the uterus or not. State v. Pryor, 74 Wash. 121, 132 Pac. 874, 46 L. R. A. (N. S.) 1028. 58 Cave v. State, 33 Tex. Cr. 335, 26 S. W. 503; Willingham v. State, 33 Tex. Cr. 98, 25 S. W. 424; Watson v. State, 9 Tex. App. 237. § 367. Miscarriage or abortion. At common law an actual miscarriage or abortion is an essential element of the offense,59 unless the indictment is for an attempt. And this is also true under some of the statutes.60 But under statutes punishing the prescribing or administering of drugs or the use of instruments with intent to produce a miscarriage or abortion, it is not necessary that a miscarriage shall actually result.61 Such a provision does not require that the means used shall actually produce an abortion, or almost produce one, or just barely fail to do so, but a finding that the medicines used will produce abortion when administered in proper doses, and that that result was prevented by the robust and healthy physical condition of the girl is sufficient. Hunter v. State, 81 Tex. Cr. 471, 196 S. W. 820. Although the doses of a medicine prescribed by defendant may have been calculated to produce an abortion, he cannot be convicted if smaller doses actually taken by the woman are not shown to have been calculated to do so. Fretwell v. State, 43 Tex. Cr. 501, 67 S. W. 1021. 59 Com. v. Bangs, 9 Mass. 387. 60 Under the Illinois statute providing for the punishment of any person who causes any woman, preg. nant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage," if the defendant is charged with causing a woman to abort, it must be shown that she actually aborted or miscarried. People v. Patrick, 277 Ill. 210, 115 N. E. 390. In Texas the statute provides that if the means used fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided the means were calculated to produce that result. Hunter v. State, 81 Tex. Cr. 471, 196 S. W. 820; Fretwell v. State, 43 Tex. Cr. 501, 67 S. W. 1021; Cave v. State, 33 Tex. Cr. 335, 26 S. W. 503. The Indiana statute applies only where the woman miscarries or dies. Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; Traylor v. State, 101 Ind. 65. Either miscarriage or death completes the offense. Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465. The Ohio statute does not specifi cally punish an attempt to procure an abortion as such. The statute punishing abortion applies only where the woman miscarries or dies. If she neither miscarries nor dies, the prosecution must be had under the general statute relating to attempts. State v. Tippie, 89 Ohio St. 35, 105 N. E. 75, aff'g 34 Ohio Cir. Ct. 203. And see Tabler v. State, 34 Ohio St. 127. If a physician administers an anesthetic for the purpose of discovering whether the fetus is dead, and with intent to cause a miscarriage if it is, though such a course is not necessary to save her life, and the woman dies as a result of the anesthetic before anything is done towards producing a miscarriage, the offense is complete. State v. Tippie, 89 Ohio St. 35, 105 N. E. 75, aff'g 34 Ohio Cir. Ct. 203. 61 Arkansas. Burris v. State, 73 Ark. 453, 84 S. W. 723. Colorado. Fitch v. People, 45 Colo. 298, 100 Pac. 1132; Dougherty v. People, 1 Colo. 514. Delaware. State v. Brown, 3 Boyce (26 Del.) 499, 85 Atl. 797. |