moment the womb is instinct with embryo life and gestation has begun, the crime may be perpetrated." And Chief Justice Smith, after quoting Justice Coulter's statement, says, "This enunciation of the law, so careful and distinct in expression, dispenses with the necessity for further discussion." While, upon principle, abortion before quickening should be punishable at common law, it is quite probable, to say the least, that the rule is to the contrary. § 223. Lord Coke's view.-"If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder."8 The inference is that the child is not regarded as in being until it has quickened. § 224. An anomaly in the law-Legislative enactments desirable. For certain civil purposes an unborn child is regarded in being from the time of conception. An illustration of this is the capacity to inherit property from that time. For certain other purposes it is not regarded in being, at common law, until it has quickened. Thus, when a woman is convicted of a capital offense, her pregnancy will not stay execution of the sentence of death unless the child has quickened. And, as heretofore stated, abortion, prior to that time, is not a crime. "In the interest of good morals and for the preservation of society, the law should punish abortions and miscarriages, wilfully produced, at any time during the period of gestation. That the child shall be considered in existence from the moment of conception for the protection of its rights of property, and yet not in existence, until four or 6 Mills v. Commonwealth, 13 Pa. St. 631. See also, State v. Loomis, 90 N. J. L. 216, 100 Atl. 160; Munk v. Frink, 81 Nebr. 631, 116 N. W. 525, 17 L. R. A. (N. S.) 439. 7 State v. Slagle, 83 N. Car. 630. 83 Inst. 50. 94 Bl. Comm. 395. five months after the inception of its being, to the extent that it is a crime to destroy it, presents an anomaly in the law that ought to be provided against by the lawmaking department of the government.' 9910 § 225. Statutory modifications of the common law-Lord Ellenborough's Act.-Both in England and in this country there have been statutory modifications of the common law. At common law, as heretofore stated, abortion before the child has quickened is no crime at all. Moreover, abortion after the child has quickened is only a misdemeanor.11 An early English statute, known as Lord Ellenborough's Act, provides that, to administer a drug to cause the miscarriage of any woman then being quick with child is a capital offense; and also that, to procure the miscarriage of a woman not being quick with child is a felony of a mitigated character. 12 § 226. Statutory modifications in this country.—Probably in all of the states of this country statutes have been passed defining, and fixing a penalty for the procuring of abortion. Most of these statutes make the offense a felony; and most of them make no distinction between committing the act before the child has quickened and committing it after the child has quickened.13 In a few states, including Michigan, the statute provides that the child must have quickened.1 A Kansas statute defines abortion as felon 10 Mitchell v. Commonwealth, 78 Ky. 204, 39 Am. Rep. 227. 11 Worthington v. State, 92 Md. 222, 48 Atl. 355, 84 Am. St. 506, 56 L. R. A. 352. Tibbetts, 12 44 Geo. III, ch. 58. 13 Commonwealth V. 157 Mass. 519, 32 N. E. 910; Eckhardt v. People, 83 N. Y. 462, 3u Am. Rep. 462; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148n. State v. Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 Am. St. 252; State v. Howard, 32 Vt. 380, 78 Am. Dec. 609. 14 People v. McDowell, 63 Mich. 229, 30 N. W. 68. ious homicide; but this has been held a nullity, since there can be no homicide without a death.15 Under a statute which provides a penalty for doing acts "with intent to procure the miscarriage of any woman," it has been held that lack of pregnancy on the part of the woman is immaterial, 16 nor is it material whether the miscarriage is consummated." And under a statute which provides a penalty for using an instrument or administering a drug "with intent to produce a miscarriage of any pregnant woman," it has been held that it is not necessary for the woman to be quick with child. 18 Moreover, it has been held that, under an indictment for attempting to commit an abortion by administering a drug it is no defense that the drug used was perfectly harmless. 19 On the other hand, it has been held that, under a statute which makes it a crime to use an instrument "with intent to destroy the child of which a woman may be pregnant, and shall thereby destroy such child before its birth," the intent to destroy the child must be alleged and proved.20 It also has been held that such a statute does not apply where the woman procures a miscarriage on herself.21 § 227. Intent necessary. It is said that the Illinois statute is evidently aimed at professional abortionists, and at those who, with the intent and design of producing abortion, shall use any means to that end, no matter what those 15 State v. Young, 55 Kans. 349, 40 Pac. 659. 16 Eggart v. State, 40 Fla. 527, 25 So. 144. 17 Smith v. State, 33 Maine 48, 54 Am. Dec. 607; State v. Longstreth, 19 N. Dak. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. 18 State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148n; State v. Atwood, 54 Ore. 526, 102 Pac. 295, 104 Pac. 195, 21 Ann. Cas. 516n. 19 State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148n; Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799, 11 Ann. Cas. 217. 20 Smith v. State, 33 Maine 48, 54 Am. Dec. 607. See also, Lohman v. People, 1 N. Y. 379, 4 How. Prac. 445, 49 Am. Dec. 340. 21 State v. Prude, 76 Miss. 543, 24 So. 871; Thompson V. United States, 30 App. Cas. (D. C.) 352, 12 Ann. Cas. 1004. means may be, but not at those who, with no such purpose in view, should, by a violent act, unfortunately produce such result. The intent to produce an abortion must exist when the means are used.22 Intent to commit abortion may be proved by acts done either before or after the particular act charged in the indictment.23 And for the purpose of proving a motive for the crime, testimony showing sexual intercourse between the defendant and the prosecuting witness is admissible2+ Under an indictment for murder by abortion the defendant may be convicted of manslaughter,25 or of assault with intent to produce an abortion.20 An indictment which charges an attempt to produce an abortion, sufficiently charges intent. The term attempt includes intent.27 "An attempt is an intent to do a particular thing, with an act toward it falling short of the thing intended."28 In a prosecution for administering drugs to a pregnant woman with intent to produce a miscarriage, if the jury find the defendant guilty, and fix his punishment at a term of imprisonment in the penitentiary, "together with a fine of one hundred dollars," the fine thus unlawfully imposed will not vitiate the verdict, since it will be rejected as surplusage.29 Where a physician, attending a woman sick with bilious fever, and who is five months advanced in pregnancy, gives her no strong medicines, or does any act to bring about a miscarriage, and she is taken in labor, which proves ineffectual until the foetus is removed by force, and she 22 Slattery v. People, 76 Ill. 217; Austin v. State, 137 Tenn. 474, 194 S. W. 383. 23 Scott v. People, 141 Ill. 195, 30 N. E. 329. 24 Scott v. People, 141 Ill. 195, 30 N. E. 329. 25 Earl v. People, 73 Ill. 329. 26 Earll v. People, 99 Ill. 123. 27 Scott v. People, 141 Ill. 195, 30 N. E. 329. 28 1 Bish. New Crim. L. (8th ed.) § 728. 29 Armstrong v. People, 37 Ill. * there afterward dies of puerperal fever, not induced by anything done or omitted to be done by her physician, a conviction for manslaughter can not be sustained. "If physicians and surgeons can be convicted of manslaughter, and sent to the penitentiary, upon such evidence as this would soon be witnessed a frightful devastation of their ranks. There is wanting in this case every element of the crime of manslaughter but that of the mere death of a human being.' * 9930 30 Honnard v. People, 77 Ill. 481. See also, People v. Hager, 181 App. Div. 153, 168 N. Y. S. 183; State v. Bolton (Vt.), 102 Atl. 489; Hunter v. State (Tex. Cr.), 196 S. W. 820; |