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DEFENCES TO CRIME.

CHAPTER I.

CRIMES AGAINST SOCIETY AND THE LAWS OF NATURE.

ABORTION-INTENT TO PRODUCE ESSENTIAL.

SLATTERY V. PEOPLE.

[76 Ill. 217.]

In the Supreme Court of Illinois, January Term, 1875.

The Statute Providing that whoever by means of any instrument, medicine, drug or other means whatsoever causes any pregnant woman to miscarry or attempts, etc., shall be punished, extends only to an intentional use of such means for such purpose. Therefore a husband who beats his wife, which beating results in a miscarriage which he never intended to produce, is not guilty under the statute.

Writ of error to the Circuit Court of Hancock County, Hon. JOSEPH SIBLEY, Judge, presiding.

This was an indictment against Trevior Slattery, for producing the miscarriage of his wife, Celestia Slattery, by beating her, etc. The defendant was convicted, and sentenced to three years' imprisonment in the penitentiary.

Henry W. Draper and Geo. Edmunds, Jr., for the plaintiff in error. B. F. Peterson, State's Attorney, and Jas. K. Edsall, AttorneyGeneral, for the People.

Mr. JUSTICE BREESE delivered the opinion of the court.

Plaintiff in error was indicted, at the June term, 1874, of the Hancock Circuit Court for feloniously, unlawfully and maliciously beating, striking, kicking, punishing and crushing one, Celestia Slattery, a pregnant woman, with intent unlawfully, feloniously and maliciously to cause her to miscarry, and by means whereof she did miscarry.

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The jury found the defendant guilty, and fixed his imprisonment in the penitentiary at three years. A motion for a new trial was denied, and judgment rendered on the verdict.

The record is brought here by writ of error, and various errors assigned. Those which are deemed important will be noticed.

The section of the statute under which the indictment was found is as follows: "Whoever, by means of any instrument, medicine, drug, or other means whatever, causes any woman pregnant with child to abort or miscarry, or attempts to procure an abortion or miscarriage, etc., shall be imprisoned in the penitentiary not less than one year nor more than ten years. "1 This 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 means may be, but not at those who, with no such purpose in view, should, by a violent act, unfortunately produce such a result. The intent to produce an abortion must exist when the means are used. That is the charge in the indictment. It is there charged the prisoner did feloniously and maliciously beat the pregnant woman, with intent unlawfully, feloniously, etc., to cause her to miscarry.

The party alleged to have been so beaten is the wife of the prisoner, who, by his own confession, had not treated her in the kindest manner, but there is not a particle of proof in the record going to show that her miscarriage was caused by any violence he at any time used towards her, or that he had the least idea such would be the result, or that he desired or intended such a result.

A felonious and malicious intent to cause a miscarriage being charged in the indictment, circumstances to satisfy the jury of the intent should be shown. A criminal offense consists in a violation of a public law, in the commission of which there must be a union or joint operation of act and intention, or criminal negligence, and the intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused.

The only marks upon the person of Mrs. Slattery were a discoloration about a finger's length of one thigh, a mark on one of her arms, and a slight discoloration at one spot on her face, but how these were produced no witness testified. It was in proof she was about three months gone in pregnancy, and had three or four miscarriages previously, and but a short time before this last one she had ridden some miles in a lumber wagon to a dancing party, where she danced all night and into the morning, and rode home in the same conveyance.

One Taylor, claiming to be a doctor, gave it as his opinion that these

1 Rev. 1874, p. 352.

marks appeared to have been made three or four days previous to the miscarriage, and in his opinion produced it; whilst Doctors Thompson and Carlton testify, the bruises as described by Taylor, would not cause miscarriage to a healthy woman. They further testify, after three or four miscarriages it becomes habitual, and the chances are against the woman carrying a child the full time, and they further say that, with such a woman, lifting heavy weight, any hard work, fast walking, riding in a lumber wagon, dancing, or anything of that kind, would be liable to induce a miscarriage.

There is no question that the great preponderance of the evidence sustains the position taken by the prisoner's counsel, that miscarriage had become habitual with her, and the chances were all against her carrying this fœtus the full time. We have said there was no evidence to show this miscarriage of the prisoner's wife was caused by any act of violence of his toward her. The weight of the testimony is the other

way.

It is argued by the counsel for the People, it sufficiently appears from the testimony of her father, Joseph Larrimore. Neither he nor Mrs. Larrimore, the mother, testify to any act of violence of their own knowledge, but claim that at Larrimore's house, where Mrs. Slattery then was, after her miscarriage, at an interview then held by the prisoner, at which were present his wife, her father and mother, a Mr. Bliss and a Mrs. Davis, the prisoner admitted many acts of violence which Larrimore specified, by not denying the accusations. No time was specified when these acts were done - whether years before or quite recently; and the prisoner was not in a position to deny, for he had promised Bliss, if he would go with him and be present at the interview, he would keep his temper-would be on his good behavior. He felt pledged to make no denial of any statement Larrimore should make, but to keep his temper under strict control, and let his fatherin-law say what he pleased. At this interview not one word was said by Mr. or Mrs. Larrimore, or Mrs. Slattery, or by anybody else, that her miscarriage had been caused by the prisoner's violence toward her. It is strange, indeed, if such was the fact, the miscarriage so recent, and all the prisoner's enormities narrated with much apparent gusto by Larrimore, that he should not have charged this miscarriage as having been produced by the prisoner's violence. There is nothing of it in the proof.

We fail to find in this record anything connecting the prisoner with the crime charged, as it is defined in the statute book.

The judgment will be reversed, and the cause remanded, that a new trial may be had.

Judgment reversed.

ABORTION - CHILD MUST BE " 'QUICK."

EVANS V. PEOPLE.

[49 N. Y. 86.]

In the New York Court of Appeals, 1872.

To Constitute a Crime under the New York statute (Laws 1869, ch. 631), in causing the death of an unborn child in attempting to produce a miscarriage, “quickening" of the child must be averred and proved.

Samuel Hand, for plaintiff in error.

A. S. Sullivan, for defendant in error.

ALLEN, J. The accused was indicted for the statutory offense of manslaughter in the second degree created and defined by chapter 631 of the Laws of 1869, entitled "An act relating to the procurement of abortions and other like offenses." He was charged with having by acts and means mentioned in the first section of the act, caused and procured the miscarriage of one Ann O'Neill then being pregnant with child, by which the death of the child was produced. The prosecution failed to prove that a miscarriage was effected, or that the death of the child was caused or produced by the act or agency of the prisoner. The pregnancy of the female was proved and that she was prematurely delivered of two living children and evidence was given tending to prove that the prisoner had some time before the birth of the children furnished the mother with medicines to be taken by her and had also applied instruments to her person for the avowed purpose of procuring a miscarriage.

The act distinguishes, as the prior legislation of the State has distinguished, between the actual accomplishment of an abortion, resulting in the death of the mother or child, and the ineffectual attempt or the furnishing of means to effect a miscarriage, making the latter offense a misdemeanor and the former a felony.

The first section of the act makes the administering of medicines or the use of other means, with intent to produce a miscarriage resulting in death, manslaughter in the second degree. It is the intent with which the act is committed that, in the case of the death of the female, reduces the crime from murder to manslaughter; for if the same acts are committed and the same means resorted to with intent to accomplish her death, and the death ensues, it is murder. Causing the death of an infant in the mother's womb was at a very early day deemed murder; but is not so regarded at the common law at the present time and is not made so by statute. Such an infant is not considered a person or a human being upon whom the crime of murder can be com

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