Abortion. Letters. It is competent to prove that letters passed between the parties, without producing the letters. 3 Ind. 334. The general character for chastity of the person seduced may be inquired into, but she can not be asked whether she had not previously had sexual intercourse with other men ; but other persons may be called upon to testify as to their own criminal intercourse with her. 13 Ind. 46. Imprisonment with fine.—In a prosecution under this statute, the jury can not impose a fine, in connection with imprisonment in the county jail, 26 Ind. 82. Cross-examination.-On the trial of such an indictment, witnesses who have testified on behalf of the state, that the defendant kept company with the female alleged to have been seduced, and that they walked and rode together a few times may be cross-examined by the defendant for the purpose of proving that at the same time, other men kept company with her in like manner. Ind. 17. 47 Character-Degree of evidence.—Where by the statute it is required that the female shall be of " previous chaste character," only slight evidence of the previous chastity should be required. Whart. Crim. Law, § 2672; Bish. Crim. Pr. § 960. SEC. 7. ABORTION. SEC. 36. Every person who shall willfully administer to any pregnant woman, or to any woman whom he supposes to be pregnant, anything whatever, or shall employ any means, with the intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, and any person, as druggist, apothecary, physician, or other person selling medicine, whether he be a merchant or peddler, who shall sell any medicine in the form of pills, powders, fluid, or in any other form, which, from its character by advertisement or otherwise, is known to be capable of producing abortion, or miscarriage, with intent to produce abortion, notwithstanding any caution given in the advertisement of such medicine, or contained in the directions accompanying the same, for any such offense the person or persons guilty of the same shall be deemed guilty of a misdemeanor, and shall Abortion. be punished by imprisonment in the county jail not exceeding twelve months, and be fined not exceeding five hundred dollars. 2 R. S. 471, 472. CHARGES. That A. B., on the day of -, in the year at said county, unlawfully and willfully administered to one C. D., who was then and there a pregnant woman [or, a woman whom he then and there supposed to be pregnant], a large quantity of medicine, with intent then and there and thereby, unlawfully to procure the miscarriage of the said C. D., such miscarriage not being then and there necessary to preserve the life of the said C. D. 2. Employing means to produce miscarriage. in the year That A. B., on the day of at said county, unlawfully and willfully did employ a certain instrument, to-wit, a wire hook, upon the body of one C. D., who was then and there a pregnant woman, by then and there unlawfully and willfully [here state the mode of using the instrument], with intent then and there to procure the miscarriage of the said C. D., the miscarriage of the said C. D. not being then and there necessary to preserve the life of the said C. D. 3. Selling medicine to procure abortion. day of at said That A. B., on the county, being then and there engaged in the business of selling medicine, unlawfully sold to one C. D., a woman, a box of pills, commonly called, at and for the price of fifty cents, which said pills were then and there, from their character by advertisement and general repute, known to the said A. B. to be capable of producing miscarriage; she, the said C. D., being then and there supposed by the said A. B. to be pregnant, and said sale being then and there made by the said A. B. with intent to produce the miscarriage of the said C. D. Sufficiency of indictment.-In an indictment under this statute an averment that the procurement of the miscarriage was not necessary to preserve the life of the woman, is equivalent to an averment that the miscarriage was not necessary to preserve her life. 52 Ind. 246. An allegation that the defendant used an instrument upon a pregnant female for the purpose of producing miscarriage, the use of Assault-Assault and battery. such instrument not being necesary to preserve her life, is sufficient. 46 Ind. 363. An indictment alleging that "the employment of the instrument was not necessary to preserve the life of" the woman, is not sufficient; it must allege that the miscarriage was not necessary to preserve the life of the woman. 41 Ind. 303; 48 Ind. 212. This decision declares Bicknell's form (Bicknell's Crim. Pr. 470) insufficient. The name of the medicine need not be stated, nor need the medicine be described as noxious or poisonous. 7 Blackf. 592; 2 Ind. 617. The state may prove that it was the popular opinion that the medicine would produce abortion. Ibid. If the name of the medicine be stated, the proof need not correspond therewith. Ibid. Where the defendant gave the substance to the woman, which she merely put into her mouth, and spat it out, without swallowing it, it was held that this was not administering. 1 Moody C. C. 114. Whether the medicine in fact tends to produce miscarriage or not seems to be immaterial. Bicknell's Crim. Pr. 470. If the means used should kill the mother, or if the child should be born alive, and afterward die of injuries inflicted in procuring the abortion, it would be murder. 1 Moody C. C. 346. SEC. 8. ASSAULT-ASSAULT AND BATTERY. Assault. SEC. 1. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another, and every person who shall perpetrate an assault shall, on conviction, be fined in any sum not exceeding fifty dollars. 2 R. S. 459 (note 3). CHARGE. day of in the year That A. B., on the at said county, did unlawfully attempt to commit a violent injury upon the person of C. D., he, the said A. B., then and there having the present ability to commit said injury, by then and there unlawfully striking at and toward said C. D. with a certain cane which the said A. B. then and there had and held in his hands. An affidavit for an assault, if in the language of the statute, is sufficient. 46 Ind. 289. Assault-Assault and battery. Assault and battery. SEC. 7. Every person who, in a rude, insolent, or angry manner, shall unlawfully touch another, shall be deemed guilty of an assault and battery, and, upon conviction, shall be fined not exceeding one thousand dollars, to which may be added imprisonment not exceeding six months. 2 R. S. 459. That A. B., on the CHARGE. day of, in the year at said county, in and upon one C. D., did unlawfully make an assault, and him, the said C. D., did then and there, in a rude, insolent, and angry manner, unlawfully touch, strike, beat, bruise, and wound. A justice can not hear and determine an assault and battery unless the injured party is present, or, being summoned, refuscs to attend, or where the summons is returned "not found." Acts 1855, p. 143. But see on this subject 53 Ind. 434. An information for forcibly freeing a person from legal arrest is sufficient to convict of an assault and battery. 33 Ind. 167. As to what is a justification by an officer holding a writ, see 45 Ind. 421. That striking plaintiff's horse was not an assault and battery upon the driver, see 43 Ind. 146. No information is necessary, in a prosecution for an assault and battery, in the circuit court, that was appealed from a justice; but the affidavit must contain all the substantial elements in the statutory definition of the offense, and will be bad if it fail to state that it was done unlawfully, and in a rude, insolent, and angry manner, or an equivalent allegation. 39 Ind. 64; 14 Ind. 23. Hence Bicknell's form (Crim. Pr. 395, 396) is bad. Late of the county.-An indictment for an assault and battery need not state that the person beaten was late of the county, nor that the beating was to his damage. 8 Blackf. 214. In the peace of the state.-Nor that he was in the peace of the state, and need not contain the words "force and arms. 7 Blackf. 280. Arrest by officer.-If A., acting as an officer, seize B., upon a warrant for his arrest, and B., after being informed that A. had such a warrant, strike him while he is executing it, a prosecution for assault and battery will lie. 11 Ind. 471. And if facts exist that would justify the act, such as illegality of the warrant, etc., the Assault-Assault and battery. defendant must show them, else the validity of the warrant will be presumed. Ibid. Gravamen. When an assault and battery is not the gravamen of, but merely an incident occuring at a riot, a final judgment, in the prosecution, for one of the offenses, may not be a bar to a prosecution for the other. 13 Ind. 540. See 14 Ind. 327, 365; 3 Blackf. 219; 6 Ind. 82; 7 Blackf. 74; 9 Ind. 363, 380; 16 Ind. 486; 47 Ind. 568; 20 Ind. 239; 27 Ind. 15; 17 Ind. 307. Assault and battery, which is simply a misdemeanor, is not included in any of the degrees of felonious homicide. 5 Ind. 527. A teacher, in the exercise of the power of corporal punishment, must not make such power a pretext for cruelty and oppression, but the cause must be sufficient, the instrument suitable, and the manner and extent of the correction, the part of the person to which it is applied, and the temper in which it is inflicted, should be distinguished with the kindness, prudence, and propriety which become the station. 4 Ind. 290, 632. Correction of pauper.-Moderate physical chastisement may be administered to an unruly pauper by the superintendent of the county asylum, when it is done without malice. 58 Ind. 516. Intent to kill.-A charge of assault and battery, with intent to kill, is only a charge of assault and battery; the words “with intent to kill" being only surplusage. 4 Blackf. 528. Evidence.-As to the admission in evidence of declaration of the party committing the assault at the time of the act, see 36 Ind. 280. Variance. If an indictment for an assault and battery alleges that the battery was committed with a certain instrument, proof that it was done with a different instrument will not be a variance. 52 Ind. 167. Evidence of animus.-On the trial of a cause of assault and battery, evidence is admissible to show the animus of the defendant, and to give character to the alleged offense, that a felony has been committed in the neighborhood within a few days of the alleged assault and battery; that there were circumstances of suspicion that the prosecuting witness had committed the felony; that the defendant and others, as members of an association, authorized by law for the detection and apprehension of felons, arrested said. witness upon suspicion of having committed the felony, and that such arrest was the assault and battery complained of. 46 Ind. 120. |