to live with him, promising her money and clothes, and that he would treat her as well as his wife, is sufficient to convict the defendant under a count for enticing the young woman away from her home for the purpose of concubinage.29

§ 215. Sexual intercourse not essential-Abduction committable by a woman.-To constitute the crime of abduction, sexual intercourse is not essential. It is enough that the woman was taken for that purpose.

30

Moreover, sexual intercourse is not essential to the crime of enticing away a female for the purpose of concubinage or prostitution. Nor is it essential to such crime that the wrongdoer succeed in reducing her to that condition. The gravamen of the offense is the purpose or intent with which the female is taken away from her parent or guardian, or person having legal charge of her person.31

§ 216. Chastity of the female.-Under the statutes of some states, the unchastity of the female, at and prior to the time of her alleged abduction, is immaterial; except in so far as it may affect her credibility as a witness.32

On the other hand, under the statutes of other states, including Illinois, chastity of the female is an essential element of this crime.33

It is to be observed, however, that the law presumes chastity; and notwithstanding the general presumption of innocence, in a prosecution for abduction the burden of proof, in its secondary sense of going forward with evidence, is upon the defendant, and he must overcome the

29 Slocum v. People, 90 Ill. 274. See also Henderson v. People, 124 I11. 607, 17 N. E. 68, 7 Am. St. 391. 30 State v. Bobbst, 131 Mo. 328, 32 S. W. 1149.

31 State v. Bobbst, 131 Mo. 328, 32 S. W. 1149.

32 State v. Bobbst, 131 Mo. 328, 32 S. W. 1149. See also, South v. State, 97 Tenn. 496, 37 S. W. 210.

33 Bradshaw v. People, 153 Ill. 156, 38 N. E. 652; People v. Flores, 160 Cal. 766, 118 Pac. 246, Ann. Cas. 1913A, 582.

presumption of chastity.34 Moreover, an instruction that the presumption of chastity of an abducted female is "only a bare presumption, and does not continue after the production of any competent evidence to the contrary," is properly refused, since it ignores the probative force of such presumption.35

§ 217. Circumstances attending the taking.-The gist of the crime of abducting an unmarried female residing with her parents is the taking or enticing her away from her parents' house.36

The purpose of the taking or enticing must exist in the mind of the wrongdoer at the time of the act. On the other hand, the fact that such purpose is unknown to the girl is immaterial.37

The taking or enticing may be to a place distant or near, or for a long or a short space of time.38 Moreover, it is not essential that the girl should be kept permanently away from the parental home, or that there should be any intention so to keep her, even where the charge is for the purpose of concubinage or prostitution.39

§ 218. Federal White Slave Traffic Act.-There is a federal statute which forbids the transportation from one state to another "of any woman or girl for the purpose of prostitution or the debauchery or for other immoral purpose, or with the intent and purpose to induce, entice or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral prac

34 Bradshaw v. People, 153 Ill. 156, 38 N. E. 652.

35 Bradshaw v. People, 153 Ill. 156, 38 N. E. 652. See also, Slocum v. People, 90 I11. 274.

36 Slocum v. People, 90 Ill. 274; People v. Plath, 100 N. Y. 590, 3 N. E. 790, 53 Am. Rep. 236.

37 Slocum v. People, 90 Ill. 274. 38 Slocum v. People, 90 Ill. 274, 276.

39 Bish. Stat. Crimes (3d ed.) 637. See also Slocum v. People, 90 Ill. 274; Reg. v. Baillie, 8 Cox. Cr. C. 238.

tice."40 This statute includes transportation for practically every form of sexual immorality, including mere fornica tion. 41

§ 220. Definition.-Abortion consists in the expulsion of a human foetus during utero gestation and before it has acquired power to sustain independent life.1

§ 221. Quickening of the child-Beginning of life.-A pregnant woman becomes "quick with child" the moment the foetus manifests life.

Life begins "in contemplation of law as soon as an infant is able to stir in the mother's womb."2 "It is not material whether, speaking with physiological accuracy, life may be said to commence at the moment of quickening, or at the moment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it."

1 Abrams v. Foshee, 3 Iowa 274, 66 Am. Dec. 77; Wells v. New England Mut. Life Ins. Co., 191 Pa. St. 207, 43 Atl. 126, 71 Am. St. 763, 53 L. R. A. 327.

21 Bl. Comm. 129.

3 State v. Cooper, 22 N. J. L. 52, 54, 51 Am. Dec. 248.

§ 222. Before and after quickening.-Whether, at common law, abortion before quickening is a crime or not the courts do not agree.

Justice Tenney says, "At common law, it was no offense to perform an operation upon a pregnant woman by her consent, for the purpose of procuring an abortion, and thereby succeed in the intention, unless the woman was 'quick with child.' "4 Chief Justice Green asserts, "We are of 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 it."

195

On the other hand, it is said by Justice Coulter, "It is a flagrant crime at common law to attempt to procure the miscarriage or abortion of the woman, because it interferes with and violates the mysteries of nature in the process by which the human race is propagated and continued. It is a crime against nature which obstructs the fountains of life, and therefore it is punished. The next error assigned is, that it ought to have been charged in the count that the woman had become quick. But although it has been so held in Massachusetts and in some other states, it is not, I apprehend, the law in Pennsylvania, and never ought to have been the law anywhere. It is not the murder of a living child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The

4 Smith v. State, 33 Maine 48, 54 Am. Dec. 607. See also, Commonwealth V. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; Commonwealth v. Bangs, 9 Mass.

387. (In this case the court says: "if an abortion had been alleged and proved to have ensued, the averment that the woman was

quick with child at the time is a necessary part of the indictment"); Mitchell v. Commonwealth, 78 Ky. 204, 39 Am. Rep. 227.

5 State v. Cooper, 22 N. J. L. 52, 58, 51 Am. Dec. 248. See also, State v. Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 Am. St. 252.