may pursue the felon till he finds himself out of danger; yet if the felon be killed after he has been properly secured, and when the apprehension of danger has ceased, such killing will be murder; though perhaps, if the blood were still hot from the contest or pursuit, it might be held to be only manslaughter, on account of the high provocation. (q)

(2) 1 East, P. C. c. 5, s. 60, p. 293. 4 Blac. Com. 185. 1 Hale, 485.

CHAPTER THE FOURTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.

WE have already seen that an infant in its mother's womb, not being in rerum natura, is not considered as a person who can be killed within the description of murder. (a) An attempt, however, to effect the destruction of such an infant, though unsuccessful, appears to have been treated as a misdemeanor at common law. (b)

By 24 & 25 Vict. c. 100, s. 58, 'Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully (c) administer to her or cause to be taken by her any poison or other noxious thing, (d) or shall unlawfully (e) use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, [at the discretion of the Court,] (f) to be kept in penal servitude for life, [or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.'] (g)

Sec. 59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be

(a) Ante, p. 6.

(b) See a precedent of an indictment for this offence as a misdemeanor at common law in 3 Chit. Crim. Law, 798, procured from the Crown Office, Mich. T. 42 Geo. 3.

(c) The word 'maliciously' was in the 9 Geo. 4, c. 31, s. 13.

(d) The words of the 43 Geo. 3, c. 58, in s. 1, were any deadly poison or other noxious and destructive substance or thing;' in sec. 2, any medicines, drug, or other substance or thing whatsoever.' The words in the 9 Geo. 4, c. 31, where the woman was quick with child, were, any poison or other noxious thing.' Where the woman was not quick with child, any medicine or other thing.' See note (1), post, p. 219.

(e) Unlawfully' was not in the 9 Geo. 4, c. 31, s. 13.

(f) The words in brackets are repealed, but the punishment except as to solitary confinement remains the same, see ante, p. 204, note (g).

(9) This clause is framed on the 7 Will. 4 and 1 Vict. c. 85, s. 6. The first part of it is new, and extends the former enactment to any woman, who, being with child, attempts to procure her own miscarriage. The second part in terms makes it immaterial whether the woman were or were not with child, in accordance with the decision in R. v. Goodhall, 1 Den. C. C. 187; S. C. as R. v. Goodchild, 2 C. & K. 293.

AMERICAN NOTE.

1 In America, there is no offence at common law unless the woman is pregnant. C. v. Parker, 9 Metc. 263. C. v. Bangs, 9 Mass. 387. Wilson v. Ohio, 2 Ohio N. s. 319. S. v. Howard, 32 Verm. 380. Mitchell v. C., 78 Ky. 704, but in many States it is

a statutory offence. See C. v. Wood, 11 Gray, 85. S. v. Howard, 32 Vt. 380. P. v. Davis, 56 N. Y. 95. Willey v. S., 46 Ind. 363. S. v. Van Houten, 37 Mo. 357. S. v. Fitzgerald, 49 Iowa, 260.

or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, [at the discretion of the Court] (h) to be kept in penal servitude [for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.'] ()

The 43 Geo. 3, c. 58, and the 9 Geo. 4, c. 31 (now repealed), made an important distinction between the case where the woman was quick with child, and where she was not quick with child. (j) Under the present Act, however, in the case of the mother, all that it is necessary to prove is that she was with child, and in the case of any other person, it is immaterial whether the woman were or were not with child.

It was held, on the 43 Geo. 3, c. 58, s. 2, that unless the woman were with child, the offence was not committed, although the prisoner thought she was with child, and administered the drug with intent to destroy the child. (k)

An indictment upon the 43 Geo. 3, c. 58, s. 2, charged the prisoner with having administered to a woman a decoction of a certain shrub called savin and it appeared upon the evidence that the prisoner prepared the medicine which he administered, by pouring boiling water on the leaves of a shrub. The medical men who were examined stated, that such a preparation is called an infusion, and not a decoction (which is made by boiling the substance in the water), upon which the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was misdescribed. But Lawrence, J., overruled the objection, and said, that infusion and decoction are ejusdem generis, and that the variance was immaterial: that the question was, whether the prisoner administered any matter or thing to the woman to procure abortion? (1)

On an indictment for administering feverfew and other drugs to procure abortion, it appeared that the prisoner gave the woman, who was alleged to be with child by him, two powders, with directions to take one on each of two successive nights, and said that the effect would be to cause miscarriage. She took one of the powders, with the feverfew, which brought on violent sickness. The other

(h) The words in brackets are repealed, but the punishment remains the same, see ante, p. 204, note (g).

(i) This clause is new. It is intended to check the obtaining of poison, &c., for the purpose of causing abortion, by making both the person who supplies and the person who procures it guilty of a misdemeanor. See sec. 68 as to the trial of offences committed within the Admiralty jurisdiction.

(j) As to where a woman was quick with child, see R. v. Phillips, 3 Campb. 77. (k) R. v. Scudder, R. & M., C. C. R. 216. S. C. 3 C. & P. 605.

(7) R. v. Phillips, 3 Campb. 74. And in R. v. Coe, 6 C. & P. 403, where the prisoner was indicted on the 9 Geo. 4, c. 31, s. 13, for administering saffron to a female, and his counsel was cross-examining as to her having taken something else before the saffron, and also as to the innoxious nature of the article; Vaughan, B., said, 'Does that signify? It is with the intention that the jury have to

do; and if the prisoner administered a bit of bread merely with intent to procure abortion, it is sufficient.' It is not stated upon which branch of the section this indictment was framed; if upon the latter, which used the words any medicine or other thing,' perhaps the dictum was right. But it should seem that neither this dictum, nor that of Lawrence, J., in R. v. Phillips, apply to the new Act, which uses the words any poison or other noxious thing' only, in the case of administering or causing to be taken; and although a doubt has been suggested in a note to R. v. Coe as to whether the words 'other means' might not be applied to other substances than such as are poisonous or noxious; it should seem that the words

other means' cannot be so applied in the new Act first, because they are in an entirely distinct sentence; secondly, because they are governed by the word use, and not by administer. See Rosc. Cr. Evid. 243. C. S. G.

powder was examined by a physician, and he could not discover any mineral substance in it; as far as he could judge from the taste, smell, and appearance, it was a mixture of savin and fennigreek, the latter being the larger ingredient. The fennigreek would scarcely produce any effect at all; savin, in that quantity, might produce a little disturbance in the stomach for the time, but would do no further injury. Feverfew (m) is an herb very similar to camomile: it is a tonic in common use among the peasantry, and has nothing noxious in it. A mixture of the powder and decoction of this herb would not alter the properties of either. The prisoner upon two or three subsequent occasions had brought the woman other medicines to take for the same purpose, some of which she had taken, but not the rest. Wilde, C. J., held that the evidence was not sufficient to prove that the drugs administered came within the meaning of the words 'poison or other noxious thing.' (n)

Where the prisoner caused half an ounce of oil of juniper to be administered, and it was proved that quantities considerably less may be taken without any ill effect, but that half an ounce produces ill effects and is dangerous to a pregnant woman, it was held that there was evidence of the administering of a 'noxious thing' within the section. (nn)

In order to bring a case within the 24 & 25 Vict. c. 100, s. 59, it is not necessary that the intention of using the noxious substance should exist in the mind of any other person than the person supplying it. The prisoner was indicted for supplying savin, knowing that it was intended to be unlawfully used to procure a miscarriage, and it was contended that there was no case against him, because it was necessary that he should know that the savin was intended to be used with intent to procure the miscarriage, whereas it was not

to be administered as shall be noxious. If a person administers any quantity of a poison, however small, it has never yet been doubted, that, if it were done with intent to murder, the offence of administering poison with intent to murder was complete; and R. v. Cluderoy, 1 Den. C. C. 514, post, which was decided after this case, shews that if poison be administered in such a way that it cannot injure, the offence is nevertheless complete; and Wilde, C. J., there said, 'the act of administering poison with intent to kill is proved. The effect of that act is beside the question.' It is submitted, therefore, that if there be an intent to procure abortion, it is quite immaterial how small the quantity be of the poison or other noxious thing that is administered. C. S. G. And see R. v. Cramp, 5 Q. B. D. 307.

(nn) R. v. Cramp, 5 Q. B. D. 307.

AMERICAN NOTE.

1 It would seem that in America administering something which is believed to be poisonous, but is not so, will not be an attempt to poison even although the person to whom it is administered dies. S. v. Clarissa,

11 Ala. 57, but Mr. Bishop doubts if this is law, see Bishop, i. s. 756. If, on the other hand, the prisoner administers a drug which he knows will do no harm he has not the intention to poison. Bishop, i. s. 769.

intended, except by the prisoner himself, to be so used; the jury found that the case was in other respects proved, but that the prosecutrix did not intend to take the savin, nor did any other person, except the prisoner, intend that she should take it, but, upon a case reserved, it was held that the intention of any other person than the prisoner was not necessary to the commission of the offence. The statute is directed against the supplying of any substance with the intention that it shall be employed in procuring abortion. The prisoner, in this case, supplied the substance, and intended that it should be employed to procure abortion. He knew of his own intention that it should be so employed, and was therefore within the words of the statute. He was also within the mischief of the statute, and was rightly convicted. (0)

The thing supplied with intent to procure abortion must be noxious in its nature. Where, therefore, an indictment charged the prisoner with supplying a certain noxious thing with intent to procure abortion, and a surgeon proved that the liquid was some vegetable decoction of a harmless character, and such as would not procure a miscarriage; but if taken with the belief that it would produce it, it might, by acting on the imagination, produce that effect; it was held that this liquid was not within the clause, although the woman proved that, after taking a wine-glassful, she felt dizzy in the head when she went to bed, and felt stupid in the head the next morning. (p)

But it need not be shewn what the noxious thing is; it is sufficient if something is administered that produces miscarriage. (q)

To constitute an administering, or causing to be taken, it is not necessary that there should be a delivery by the hand. Where, therefore, on an indictment for administering poison and causing poison to be taken, it appeared that the prisoner had mixed poison with coffee, and had told her mistress that the coffee was for her, and the mistress took it, and drank some of it; it was held that this was sufficient. (s) A mere delivery to the woman, however, is not sufficient; the poison must be taken into the mouth, and, it seems, some of it swallowed, to constitute an administering. (t)

Upon an indictment for unlawfully administering to, and causing to be taken by, Emma Cheney, poison, with intent to procure her miscarriage, it appeared that she, being and believing herself to be pregnant, applied to the prisoner to get her something to procure her miscarriage, and that the prisoner accordingly purchased some preparation of mercury, which he gave to her, directing her to take one-half of the quantity in gin; Cheney accordingly procured the gin, and, in the absence of the prisoner, took the dose, which produced a miscarriage. The jury found these facts, and that the mercury was both given by the prisoner to Cheney, and taken by her, with intent to procure the miscarriage; and, upon a case reserved, it

(0) R. v. Hillman, L. & C. 343. Tilley, 14 Cox, C. C. 502.

R. v.

(p) R. v. Isaacs, L. & C. 220; 33 L. J. M. C. 60.

(q) R. v. Hollis and Blakeman, 12 Cox, C. C. 464.

(s) R. v. Harley, 4 C. & P. 369, J. A. Park, J. (t) R. v. Cadman, R. & M., C. C. R. 114.