Evans v. . the People

Allen, J. The accused was indicted for the statutory offence of manslaughter in the second degree, created and defined by chap. 631 of the Laws of 1869, entitled “ An act relating to the procurement of abortions, and other like offences.” 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’Eeill, 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 *88 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 offence 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 j 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 committed. (1 Russ. on Crimes, 485, 671.) 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. (1 Russ. on Crimes, 671; Commonwealth v. Bangs, 9 Mass., 387; Same v. Parker, 9 Metc., 263.) 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. *89 (1 R. S., 661, § 8.) 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’Keill was pregnant, had, at the time of the alleged offence, 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 that 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 quickened in the womb. (Regina v. Wycherley, 8 C. & P., 262.) It was assumed by the judge and the conviction was had upon the theory that the offence, under the statute, would be consummated by the destruction of the foetus at any time during pregnancy. A miscarriage can be effected at any time after actual conception; and if the death of the woman results from an attempt to produce it by any of the acts and means mentioned in the statute, the offence 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. (1 Bl. Com., 129.) But it is life in embryo, and recognized in the interests of humanity in some cases, and in others in the interest of the child thereafter to be bom, and in respect to succession of estates. *90 But until the period of quickening there is no evidence of life; and whatever may be said of the foetus, 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 foetal movements are the first clearly marked and well defined - evidences of life. (Dean’s Med. Jur., 129.) ' 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 attempts 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 foetus, there is no living child. (1 Russ on Crimes, 672; Am. Cr. Law, § 1214 and seq.) Death is the opposite of life; it is the termination of life, and death cannot 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 fostus, 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 the death of a living child. Blaekstone says, life begins, in contemplation of law, as soon as an infant is able to stir in "the mother’s womb. (1 Bl. Com., 129.) It ceases at death. (Commonwealth v. Parker, 9 Met., 263; State v. Cooper, 2 Zab. [22 N. J.], 52.) 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 sus *91 tained, and the convictions have been for offences clearly distinguishable from the statutory offence of manslaughter created by the act of 1869. Mills v. Commonwealth (13 Penn. St. R., 631) was a conviction for an attempt to procure 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 offence, 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 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 foetus before that period. For this error of the court the judgment of the Supreme Oourt and of the Sessions should be reversed and a new trial granted.