statutes making all persons who aid or abet in the commission of an offense, or who counsel, encourage, or command its commission, principals and punishable as such.88

A person may be convicted as a principal under a statute punishing any person who administers a drug or causes it to be taken, or who uses an instrument or other means, to procure an abortion, where he furnishes the drug or instrument although he does not deliver it to the woman personally, or is not present when it is taken or used.89 And under a statute punishing a person who advises a woman to take a drug, a person who gives such advice is a principal.90 In some states there are statutes punishing any one who aids, assists or counsels any person intending to produce a miscarriage,91 or providing that a person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice.92 A person who aids or assists the woman in procuring the offense to be committed or assists in committing it is an accomplice.93 But

A person who aids, counsels, or hires the commission of the offense but is not present at its commission is an accessary before the fact. Com. v. Adams, 127 Mass. 15.

Where the offense is a misdemeanor all who aid, abet or participate in the offense are principals, though not present. State v. Wilson, 79 N. J. L. 241, 75 Atl. 776, aff'd 80 N. J. L. 467, 78 Atl. 144.

88 State v. Carey, 76 Conn. 342, 56 Atl. 632; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; State v. Baldwin, 79 Iowa 714, 45 N. W. 297; People v. Bliven, 112 N. Y. 79, 19 N. E. 638, 8 Am. St. Rep. 701.

A person procuring and advising the use of any instrument for the prohibited purpose may be convicted under a statute punishing any one who uses an instrument, where the statute declares that all persons concerned in the commission of a crime, or who aid and abet in its commission, are principals. Greenwood v. State, 3 Okla. Cr. 247, 105 Pac. 371.

Under some of the statutes an ac

cessary before the fact must be
charged as a principal. Fixmer v.
People, 153 Ill. 123, 38 N. E. 667.
89 See § 227, supra.

90 He is not an accomplice of the woman nor an accessary to a crime in which she is the principal, since she is not guilty of any offense. State v. Murphy, 27 N. J. L. 112.

As to such statutes see § 373, infra. 91 This provision in the Delaware statute has been held not to apply to a person counseling the woman herself. State v. Parm, 5 Pennew. (21 Del.) 556, 60 Atl. 977.

92 Moore v. State, 37 Tex. Cr. 552, 40 S. W. 287; Willingham v. State, 33 Tex. Cr. 98, 25 S. W. 424; Wandell v. State (Tex. Cr.), 25 S. W. 27.

A person who gives a pregnant woman pills for the purpose of producing an abortion, is a principal and not an accomplice, although he was not present when she took them. Willingham v. State, 33 Tex. Cr. 98, 25 S. W. 424.

93 Solander v. People, 2 Colo. 48. One who is hired by another to commit the offense is an accomplice

a person who merely accompanies a woman to the place where the offense is committed, but does not advise or aid her, and is not present when it is committed, is neither an accessary,94 nor an accomplice.95 And a person who procures ether which is administered to the person on whom an abortion is performed cannot be regarded as an accomplice unless it is shown that he knew the purpose for which it was to be used.96

§ 373. Responsibility of woman. A woman who commits or attempts to commit an abortion on herself, or who procures or consents to its commission on herself by another, is generally regarded as the victim rather than the perpetrator of the crime. She is not within general statutes punishing any person who administers drugs to or uses instruments upon a woman with intent to procure an abortion or miscarriage, and is not guilty of any offense, unless the statute expressly so provides.97 Nor is she an accomplice where the acts are

done by a third person with her consent or by her procurement.98 There are some holdings, however, to the effect that she is indictable at common law.99 And statutes in some states make her guilty of a separate offense. She may be a party to a conspiracy to procure an abortion upon herself.2 And in at least one state it has been held that where she voluntarily participates with another person who administers medicine to, or uses an instrument upon her, she is subject. to indictment under a statute providing for the prosecution and

punishment of persons who aid, abet or procure another to commit any offense, and hence is an accomplice.

§ 374. Advising or procuring commission of offense. Many of the statutes, in varying language, punish any person who prescribes for a woman, or advises, directs, procures her to take, or suggests to her to take any drug, or suggests, directs or advises the use of any instrument, with the intent or for the purpose of producing a miscarriage. Generally a conviction may be had under statutes of this character whether the substance prescribed or advised to be taken is actually taken by the woman or not.5 But some of them have been construed as requiring an actual taking of the medicine or drug.

3 State v. McCoy, 52 Ohio St. 157, 39 N. E. 316. And see Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. Rep. 340.

4 See the statutes of the various states and the following cases:

Arkansas. Burris v. State, 73 Ark. 453, 84 S. W. 723.

Delaware. State v. Jones, 4 Pennew. (20 Del.) 109, 53 Atl. 858.

Florida. Eggart v. State, 40 Fla. 527, 25 So. 144.

Indiana. McCaughey v. State, 156 Ind. 41, 59 N. E. 169.

Minnesota. State v. Owens, 22

Minn. 238.

New Jersey. State v. Hyer, 39 N. J. L. 598; State v. Murphy, 27 N. J. L. 112.

New York. People v. Phelps, 133 N. Y. 267, 30 N. E. 1012, aff'g 61 Hun 115, 15 N. Y. Supp. 440.

Oklahoma. Greenwood v. State, 3 Okla. Cr. 247, 105 Pac. 371.

Where the statute uses the words "advises and procures" the defendant must both advise and procure the woman to take a drug in order to come within it. State v. Crews, 128 N. C. 581, 38 S. E. 293.

"Procures" means prevails upon, or induces her to take it. Such a provision does not make it necessary to show that he procured the drug.

State v. Crews, 128 N. C. 581, 38
S. E. 293.

A person who procures an instrument, and advises and directs her to use it for the purpose of producing an abortion, may be convicted as a principal where the woman uses it in his absence, and in consequence miscarries and dies. Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. Rep. 340.

The English statute provides for the punishment of whosoever shall supply or procure any poison or other noxious thing, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman. Reg. v. Titley, 14 Cox C. C. 502; Reg. v. Hillman, 9 Cox C. C. 386.

It is immaterial that the woman did not intend to take the thing. Reg. v. Hillman, 9 Cox C. C. 386.

5 Burris v. State, 73 Ark. 453, 84 S. W. 723; Eggart v. State, 40 Fla. 527, 25 So. 144; State v. Murphy, 27 N. J. L. 112.

6 It has been so held in New York under a statute punishing a person "who advises or causes a woman to take any medicine," etc. People v. Phelps, 133 N. Y. 267, 30 N. E. 1012, aff'g 61 Hun 115, 15 N. Y. Supp. 440.

Merely soliciting a woman to take drugs, without more, is not punishable as an attempt."

The statutory offenses of selling or advertising medicines or articles for producing abortions or the prevention of conception, or giving information how such results may be accomplished, and of sending such medicines, articles, advertisements, or information through the mails, will be considered in subsequent chapters.

7 Lamb v. State, 67 Md. 524, 10 Atl. 208, 298. And see generally chap. 5,

supra.

8 See § 1123, infra.

9 See § 1474, infra.