ing drugs to a pregnant woman was held not to apply to the woman herself.30 And under some statutes a woman is not indictable for procuring an abortion upon herself.31 § 2765. Proof of nature of means used. The proof should show something of the nature or kind of the instruments, drugs or other things or articles used for the purpose of producing the abortion. It has also been held that the proof should show that the means or instruments implied were calculated to or would produce the intended result.32 Some cases hold that it is not necessary to show the character of the instrument used.33 But under rules given in another section it is immaterial whether or not the intended effect resulted. And it has been held that instructing, directing, soliciting or inducing the woman to take violent physical exercise, where a motive was shown to exist, for the purpose and with the intention of thereby producing the abortion, was sufficient. It is not necessary to prove that the drug or liquid administered was poisonous; or even that it should be capable of producing the miscarriage charged.35 It is sufficient if the proof shows that the liquid or substance administered was noxious or unwholesome and that it might probably occasion injury or derangement to the system of a woman who was pregnant with child; and this may be inferred from the effects.36 34 § 2766. Proof of pregnancy.—The rule established by one class of cases is that in prosecutions under such sections of the statute where the charge is an attempt to produce a miscarriage or abortion that it is not necessary either to aver in the indictment or prove on the trial of the case that the woman was in fact pregnant. Such cases evidently proceed on the theory that the crime consists in the attempt to do the act, and that the act itself is complete, regardless of the actual condition of the woman or the result of the effort.37 Another 35 State v. Owens, 22 Minn. 238. 36 Dougherty v. People, 1 Colo. 514; State v. Vawter, 7 Blackf. (Ind.) 592; State v. Gedicke, 43 N. J. L. 86; Eggart v. State, 40 Fla. 527, 25 So. 144; State v. Crews, 128 N. Car. 581, 38 S. E. 293; State v. Van Houten, 37 Mo. 357; Watson v. State, 9 Tex. App. 237; Rex v. Phillips, 3 Campb. 73. 37 Commonwealth v. Taylor, 132 class of cases establishes the rule that under certain peculiar charges in the indictment or under the peculiar language of the statute, it is not only necessary to prove that the woman was pregnant but that she was quick with child; that is, that the child was alive. And this rule has been carried to the extent of holding that under certain averments in the indictment the pregnancy of the woman must be established beyond a reasonable doubt.38 § 2767. Proof of opportunities and facilities.-As tending to establish both the crime and the intent with which it was committed, it is proper to introduce any proper evidence which will prove or tend to prove either the opportunity to commit the crime or the facilities with which it might have been committed. Thus, it has been held competent and proper to introduce in evidence or to exhibit to the jury surgical instruments adapted to use in producing abortion, found in the possession of the accused. So it has been held competent for medical experts to testify that in their opinion the instruments found and exhibited were adapted to producing abortion.39 And it has been held competent to introduce letters or written statements or arrangements by which the accused and the person upon whom the abortion was alleged to have been produced were to meet at a certain place; or evidence that they did meet and were known to be at a place peculiarly adapted to the commission of such crime; such evidence being admissible on the theory of affording an opportunity to commit the crime charged."" § 2768. Proof of similar acts.-The general rule as to proof of similar acts for the purpose of showing guilt or guilty knowledge Mass. 261; Commonwealth v. Fol- * State v. Stewart, 52 Iowa 284, 3 N. W. 99; State v. Alcorn, 7 Idaho 599, 64 Pac. 1014; Mitchell v. Commonwealth, 78 Ky. 204; State v. Smith, 32 Me. 369; People v. McDowell, 63 Mich. 229, 30 N. W. 68; People v. Aiken, 66 Mich. 460, 33 N. W. 821; State v. Cooper, 22 N. J. L. 52; Evans v. People, 49 N. Y. 86; Wilson v. State, 2 Ohio St. 319; Mills v. Commonwealth, 13 Pa. St. 627, 631. 30 Commonwealth v. Brown, 121 Mass. 69; Commonwealth v. Drake, 124 Mass. 21; Commonwealth v. Blair, 126 Mass. 40; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; People v. Vedder, 34 Hun (N. Y.) 280; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616; Weed v. People, 3 Thomp. & C. (N. Y.) 50; Moore v. State, 37 Tex. Cr. App. 552, 40 S. W. 287; People v. Sessions, 58 Mich. 594, 26 N. W. 291. 40 Hays v. State, 40 Md. 633. applies in this class of cases, and where the charge was that the accused had unlawfully used certain instruments with intent to cause the miscarriage of the woman, it was held proper to show that in addition to using the instruments described, the accused had also administered other unlawful treatment for the same purpose; it was also held proper and competent to prove that he had used the same treatment on the same woman on other occasions than that named in the indictment and recently prior to the same time charged, for the purpose of showing both his intent and his knowledge or belief of the pregnant condition of the woman." 41 § 2769. Corroborative proof.-Under some statutes there can be no conviction unless the woman on whom the operation was alleged to have been produced is corroborated by other testimony or circumstances. The rule in this, as in other such cases, is that she must be corroborated on every essential element of the crime. And as the intent is not only an essential element but the gist of the offense, she must be corroborated in this particular. As stated by one court, "she must also have been corroborated by circumstances, or otherwise, in at least some portion of her testimony which imputes to the defendant the commission of the crime alleged, to wit, in the use of an instrument with intent to produce abortion."42 Under a statute which provided that a conviction should not be had on the evidence of an accomplice in the absence of corroborative proof, it was held in a case where the husband occupied the position as accomplice in causing the death of his wife by consenting to an abortion, that the dying declarations of the wife supporting the statements of the husband were sufficient corroborative proof to sustain a conviction.43 But where the record does not affirmatively show that there was no corroborative evidence, and where it does not purport to contain all the evidence upon that point, the presumption of law is that there was sufficient competent evidence to support the verdict.** § 2770. Dying declarations.-The general rule as to the admissibility of dying declarations does not apply wholly in cases of abor 41 Commonwealth v. Corkin, 136 King v. State, (Tex.) 34 S. W. 282; Mass. 429; People v. Sessions, 58 see, § 2760. Mich. 594, 26 N. W. 291; Scott v. People, 141 Ill. 195, 30 N. E. 329; Maine v. People, 9 Hun (N. Y.) 113; 42 People v. Josselyn, 39 Cal. 393. 43 State v. Pearce, 56 Minn. 226, 57 N. W. 652. "State v. Owens, 22 Minn. 238. tion. Generally speaking and according to many cases, in this class, such evidence is not admissible. The rule excluding such declarations is based on the fact that death is not an essential ingredient of the crime. And where the death of the woman is not such essential ingredient of the crime such declarations are not admissible. The statutory crime of abortion in many states, as at common law, is complete without the death of the woman. In such cases the proof of death where it ensues is not so much to determine the character of the crime as to determine the penalty to be inflicted on the criminal.46 But where the death of the woman is an essential element in the offense as charged, her dying declarations may be introduced in evidence. So, it may be given as a general rule that in prosecution for homicide produced or caused by an abortion, the dying declarations of the deceased are admissible in evidence." § 2771. Necessity for producing abortion-Burden of proving negative averment. The statutes creating this offense generally contain an exception that it is not a crime if done in order to save human life. It has been held that this exception in the statute must be negatived in the indictment and it must be proved on the trial and that the burden of proving such a negative averment is upon the state. But it has been held that this rule does not require proof beyond a reasonable doubt, but it is sufficient if such negative averment is made out by a prima facie case. The rule on this subject was stated by the Connecticut court as follows: "The want of necessity was an element of the crime as charged in the information, as much so as the act or "Montgomery v. State, 80 Ind. 338; Wooten v. Wilkins, 39 Ga. 223; Rex v. Lloyd, 4 Car. & P. 233; Reg. v. Hind, 8 Cox Cr. Cas. 300; Reg. v. Edwards, 12 Cox Cr. Cas. 230. "Montgomery v. State, 80 Ind. 338; Worthington v. State, 92 Md. 222, 48 Atl. 355; Commonwealth v. Homer, 153 Mass. 343, 26 N. E. 872; People v. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78; Railing v. Commonwealth, 110 Pa. St. 100, 1 Atl. 314; State v. Pearce, 56 Minn. 226, 57 N. W. 652. 542, 33 Atl. 312; State v. Alcorn, 7 Idaho 599, 64 Pac. 1014; State v. Leeper, 70 Iowa 748, 30 N. W. 501; State v. Baldwin, 79 Iowa 714, 45 N. W. 297; People v. Commonwealth, 87 Ky. 488, 9 S. W. 509; Worthington v. State, 92 Md. 222, 48 Atl. 355; Commonwealth V. Thompson, 159 Mass. 56, 33 N. E. 1111; People v. Olmstead, 30 Mich. 431; State v. Pearce, 56 Minn. 226, 57 N. W. 652; Donnelly v. State, 26 N. J. L. 601; State v. Meyer, 65 N. J. L. 237, 47 Atl. 486; Maine v. "Montgomery v. State, 80 Ind. People, 9 Hun (N. Y.) 113; State 338; ante, Vol. I, § 353. v. Dickinson, 41 Wis. 299. "State v. Lodge, 9 Houst. (Del.) intent charged; and the burden of proving the former as well as the latter elements rests upon the state for the same reason, namely, because under our law it is the duty of the state to prove guilt and not that of the accused to prove innocence. . . The truth of this negative averment as part of the state's case must in some way be made prima facie to appear at the trial; but it need not necessarily be so made to appear by evidence. For instance, where there is a presumption of law in favor of the truth and averment of this kind, the state may in the first instance, and until evidence to the contrary is introduced by the defendant, rest upon the presumption, just as it might upon evidence sufficient to make out a prima facie case. In such a case the burden of proving the averment still rests upon the state, but by the presumption it is relieved for the time being from introducing evidence in support of the averment, because the presumption under such circumstances stands in the place of evidence." Where the exception in the statute further provides that the act must be done on the advice of a physician, the rule is established in some cases that while it is necessary for the state to produce some evidence that the abortion was unnecessary to save the life of the mother, the burden of showing that it was, advised by a physician to be necessary for that purpose, is upon the defendant.50 So, it is held that this absence of necessity may be proved by circumstantial evidence sufficient to demonstrate that the instrument or means was not employed because of necessity.51 "State v. Lee, 69 Conn. 186, 37 Atl. 75; Beasley v. People, 89 Ill. 571; State v. Aiken, 109 Iowa 643, 80 N. W. 1073; State v. Watson, 30 Kans. 281; Commonwealth v. Hart, 11 Cush. (Mass.) 130; State v. Hirsch, 45 Mo. 429; State v. Meek, 70 Mo. 355; State v. Fitzporter, 93 Mo. 390, 6 S. W. 223; State v. Schuerman, 70 Mo. App. 518; Bradford v. People, 20 Hun (N. Y.) 309; People v. McGonegal, 10 N. Y. Cr. 141, 17 N. Y. S. 147; Moody v. State, 17 Ohio St. 110; State v. Barker, 18 Vt. 195; Hatchard v. State, 79 Wis. 357, 48 N. W. 380; but see, State v. Clements, 15 Ore. 237, 14 Pac. 410. 50 State v. Meek, 70 Mo. 355; Moody v. State, 17 Ohio St. 110. 51 Bradford v. People, 20 Hun (N. Y.) 309; People v. McGonegal, 10 N. Y. Cr. 141, 17 N. Y. S. 147; Hatchard v. State, 79 Wis. 357, 48 N. W. 380. |