mitted.1 At common law an unsuccessful attempt to effect the destruction of an infant, "quick" in its mother's womb, appears to have been treated as a misdemeanor and an actual destruction of such infant as a high crime.2 The willful killing of an unborn child is not manslaughter except as rendered so by statute. The general laws of the State make the killing of a quick child manslaughter in the first degree when caused by an injury to the mother which would be murder if it resulted in the death of the mother.3 And by the act under consideration it is made manslaughter in the second degree to cause the death of the child in an attempt to procure a miscarriage. The indictment does not charge that the child or children with which Ann O'Neill was pregnant, had at the time of the alleged offense quickened in the womb. In other words it is not charged that she was pregnant with a quick child, and there was no evidence that the child had quickened. The judge, in response to an inquiry by the prisoner, charged that it was immaterial whether the child was then quick, and it was enough that she was pregnant; and that an abortion in any stage of pregnancy, was manslaughter in the second degree. A woman is "quick with child" from the period of conception and the commencement of gestation, but is only "pregnant with a quick child" when the child has become quick in the womb.4 It was assumed by the judge, and the conviction was had upon the theory, that the offense, under the statute, would be consummated by the destruction of fœtus at any time during pregnancy. A miscarriage can be effected at any time after actual conception; and if the death of the woman resulted from an attempt to produce it by any of the acts and means mentioned in the statute, the offense is complete. There was no evidence given upon the trial as to the commencement of life in the child or the character or degree of vitality at the different periods of gestation. But it may be assumed that the claim of the physiologist is true, that life exists from the first moment of conception. And it has been well settled from a very early period, that certain civil rights attach to the child from the first, and that legal consequences result from pregnancy before actual quickening.5 But it is life in embryo and recognized in the interests of humanity in some cases, and in the other in the interest of child thereafter to be born and in respect to succession of estates. 1 Russ. on Cr. 485, 671. 2 Russ. on Cr. 671; Commonwealth v. Bangs, 9 Mass. 387; Same v. Parker, 9 Metc. 31 Rev. Stats. 661, sec. 8. 4 Reg. v. Wycherly, 8 C. & P. 262. But until the period of quickening there is no evidence of life; and whatever may be said of the fœtus, the law has fixed upon this period of gestation as the time when the child is endowed with life, and for the reason that the fœtal movements are the first clearly marked and welldefined evidence of life.1 Although there may be life before quickening, all the authorities agree that a child is not "quick" until the mother has felt the child alive within her. "Quick" is synonymous with "living" and both are the opposite of "dead." The woman is not pregnant with a living child until the child has become quick. If the child is a living child from the instant of conception then all the authorities, medical and legal, are sadly at fault in their attempt to distinguish between mere pregnancy and pregnancy with a quick child, and legislators have been laboring under the same hallucination in legislating upon the subject, for all the acts passed in reference to abortion in this country and in England recognize the fact that the child does "quicken," that is, become endowed with life, at a certain period, longer or shorter, after conception and that there is a period during gestation when, although there may be embryo life in the fœtus, there is no living child.2 Death is the opposite of life; it is the termination of life, and death can not be caused when there is no life. There must be a living child before its death can be produced. It is not the destruction of the fœtus, the interruption of that process by which the human race is propagated and continued that is punished by the statute as manslaughter, but it is the causing of the death of a living child. Blackstone says, life begins in contemplation of law as soon as an infant is able to stir in the mother's womb.3 It ceases at death.4 The distinction is not only recognized, but distinctly affirmed in the cases in which convictions for causing the miscarriage of a woman, before the child has quickened, have been sustained and the convictions have been for offenses clearly distinguishable from the statutory offense of manslaughter created by the act of 1869. Mills v. Commonwealth,5 was a conviction for an attempt to procure an abortion, and there was no averment that the child had quickened, and it was held that such averment was unnecessary. The judge said it was not the murder of a living being that constituted the offense, but the destruction of gestation by wicked means and against nature. He speaks of the womb as "instinct with embryo life" after gestation has begun, but recognizes the fact that there is no living child who can be killed, whose life can be 1 Dean's Med. Jur. 129. 21 Russ. on Crimes, 672; Am. Cr. Law, sec. 1214, and seq. 31 Bla. Com. 129. 4 Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 2 Zab. (22 N. J.) 52. 13 Pa. St. 631. taken from it, until the period of quickening. It was error to charge that the death of a child could be caused or produced before it had given evidence of life, had become "quick" in the womb, and that the crime of manslaughter under the statute could be predicated of the destruction of the fœtus before that period. For this error of the court the judgment of the Supreme Court and of the Sessions should be reversed and a new trial granted. ABORTION-MANSLAUGHTER IN ATTEMPTING ABORTION - EVIDENCE-EXPERTS. PEOPLE v. Olmstead. [30 Mich. 431.] In the Supreme Court of Michigan. 1. One can not be Convicted of Statutory Manslaughter, in Attempting to Procure an Abortion, on an information charging him simply with manslaughter, which does not recite the facts which constitute the crime under the statute. 2. The Opinion of a Witness that a woman had had a miscarriage is inadmissible. 3. On a Trial for Manslaughter, in attempting to procure an abortion, held, that an exclamation by the deceased the day before she died, "Oh, Aleck, what have we done? I shall die," was not admissible as a dying declaration. EXCEPTIONS from Branch Circuit. Isaac Marston, Attorney-General, for the People. N. P. Loveridge and L. T. N. Wilcox, for respondent. CAMPBELL, J. The respondent was informed against for manslaughter in killing one Mary Bowers, whom it is averred he did "feloniously, willfully, and wickedly kill and slay, contrary to the statute in such case made and provided," etc. The information does not name the offense, nor the manner or means of its commission. Upon the trial, the prosecution, in opening, stated that the prisoner was charged under section 7542 of the Compiled Laws, which is as follows: "Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother, be thereby produced, be deemed guilty of manslaughter." The preceding section makes the malicious killing of an unborn quick child manslaughter, if done by an injury to the mother which would have constituted her murder if she had died. The succeeding section makes all unnecessary attempts to produce the miscarriage of a pregnant woman, whatever may be the result, punishable as a misdemeanor. The distinction, therefore, is clearly taken, as depending on the intent to destroy a living unborn child and supplies a defect at the common law, whereby such attempts were not felonious, and in some cases, at least, may not have been punishable at all. The elements of the crime, as applied to the case before us, are found in the death of the mother, produced by acts intended to destroy a quick child; that term being used in the statute for an unborn child liable to be killed by violence. The ambiguity which, according to Mr. Bishop, seems to exist in some statutes, as to the fœtal condition, is not found in our statutes, which cover the whole ground by different provisions.1 The case was presented to the jury upon circumstantial evidence entirely, the cause of death being proved by medical testimony from a post mortem examination, and the connection of respondent with it being also inferential. Upon the trial, one Lucy Stone was sworn as a witness, who testified to having been sent for by respondent on the day before the deceased died, to wash her and change her clothes. She testified to certain appearances upon the bed and clothing, and to a peculiar offensive odor which she said she had never noticed before at any time or place, although she had noticed something like it. This testimony was objected to, but we think it was allowable as going to show, in some degree, the condition of the deceased, and a circumstance which was not irrelevant, and which might possibly be material with other proofs. But without proof of any minute examination of the person of the deceased, or any facts on which she based her opinion, or of any knowledge or experience which might enable her to form an opinion, this same witness was allowed to answer the following question: "Will you state what in your opinion was the matter with Mrs. Bowers at that time?" Her reply was: "My opinion was that she had lost a child." It is impossible to find any reason for receiving such proof. It involved an opinion which no medical man could give without a very full examination. It also undertook to show more than a mere miscarriage. No witness, medical or otherwise, can be allowed to give testimony from his observation, concerning the nature of a person's illness or its causes, without proof both of a sufficient examination and such knowledge or experience as will qualify him to offer an opinion. 1 Comp. L., secs. 7541, 7542, 7543; Bish. Stat. Cr.,secs. 742-750, and cases cited. This woman may or may not have possessed such knowledge as would allow her to give an opinion upon some of the medical questions involved in her answer, but she gave no proof of her knowledge, and gave no testimony upon which it could be inferred that her observation was such as would have justified any one in expressing an opinion. Whether it is within the power of medical science to determine from mere observation that there has been a miscarriage of a quick child, is a question we need not consider. It is certain that any competent physician would be very guarded in offering such an opinion. It is impossible to avoid the belief that the witness answered from her suspicions, and not from observation alone, and the question allowed to be put did not confine her to any such source of knowledge or inference. There is no occasion to review authorities upon so plain a case. Objection was also made to the reception of testimony from Mrs. Belinda Wheeler, as to what was claimed to have been a dying declaration. This witness swore she was alone in the room with deceased the day before her death. Her account is as follows: "She was lying with her eyes shut. She did not open her eyes, and I put my hand on her wrist to see if I could feel her pulse, and then she spoke and says: 'Oh, Aleck, what have we done? I shall die.' I went away in a few minutes after that." And being further examined, she testified: "She did not open her eyes the last time I was there (which was the time in question), or say anything else; I did not say anything." This is the whole proof, except some cross-examination about witness' statements on other occasions, bearing upon the existence of delirium. Dying declarations, as is well settled, are neither more nor less than statements of material facts concerning the cause and circumstances of homicide, made by the victim under the solemn belief of impending death, the effect of which on the mind is regarded as equivalent to the sanction of an oath. They are substitutes for sworn testimony, and must be such narrative statements as a witness might properly give on the stand if living.1 The so-called declaration admitted here was entirely destitute of any feature of testimony in the proper sense of the term. There is nothing to indicate that it referred to the cause of death. It was not made for the purpose of explaining any act connected with the death. It formed no part of any conversation, and was called out by no question or suggestion, and does not purport to be a narrative of anything. Neither is there anything to indicate that it was made for any purpose, or in view of 1 See People v. Knapp, 26 Mich. 112, and cases cited; also Heard v. People, 25 Id. 405. |