50 Mass. 263 | Mass. | 1845
Without stating particularly the formal grounds of the motions in arrest of judgment and for a new trial, it is sufficient to say that they resolve themselves into one question, namely, whether it is an indictable offence, at common law, to administer a drug, or perform an operation upon a pregnant woman, with her consent, with the intention
We must take care not to confound this case with some others, which resemble it in fact, but fall within another principle. The use of violence upon a woman, with an intent to procure her miscarriage, without her consent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt by drugs or instruments, the death of the mother ensues, the party making such an attempt, with or without the consent of the woman, is guilty of the murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where, in like manner, there is the consent of the parties.
The case of Commonwealth v. Bangs, 9 Mass. 387, is relied on, as a direct authority for the defendant. It is insisted upon, however, on the part of the prosecution, that that part of the opinion, which states that it must be averred- and proved that the woman was quick with child, was obiter die turn, and not necessary to the decision.
The report is very short ,• and as no reasons are assigned, we cannot certainly infer whether the decision was placed upon that ground. The motion in arrest of judgment was upon two grounds ; first, that no abortion, in fact, was produced ; and second, that it was not alleged that the woman was quick with child; and the judgment was arrested, apparently, on both grounds. We are therefore inclined to consider it as an adjudication of the point now raised.
And the court are of opinion that, at common law, no in
Si sit aliquis qui mulierem. pregnantem percusserit, vel ei venenum dederit, per quód fecerit abortivum, si puerperium jam formatum vel animatum fuerit, et máxime si animatum, facit homicidium. Bracton, 121. To the same effect are 1 Hawk. c. 31, § 16, and 1 Gabbett Crim. Law, 519.
This distinction, between a woman being pregnant and being quick with child, whatever may be the physical theory upon which it was originally founded, is wqll known and recognized in the law. “ Life,” says Blackstone, “ begins, in contemplation of law, as soon as an infant is able to stir in the mother’s womb.” This distinction is strongly marked in St. 43 Geo. 3, c. 58, known as Lord Ellenborough’s act; the first section of which declares it a capital offence to administer a drug to cause the miscarriage of any woman then being quick with child. And the same statute has another provision, declaring the same act, to procure the miscarriage of a woman not being quick with child, a felony of a mitigated character.
In the case of Rex v. Phillips, 3 Campb. 73, which was an indictment on this statute, it was held by that learned judge, Mr. Justice Lawrence, that,-in the construction of this statute, the words “ quick with child ” must be taken to be accord
The only authority, adduced iñ support of the prosecution, was a precedent in 3 Chit. Crim. Law, 798, which is an indictment at common law, in which it is not alleged that the woman was quick with child. It does not appear that any judgment was rendered on this indictment, which was found shortly before the passing of the act of 43 Geo. 3; but as it is inserted, as a precedent, in a work of good authority, it was probably deemed good evidence of the law. But, upon a careful consideration of this precedent, it will not be found inconsistent with what we take to be the rale of the common law. The indictment contains several counts, and they all charge an assault upon the woman; and there is no intimation that the applications were made with her consent, but the conclusion, from the averments, is otherwise. It is then the case of an assault at common law, with aggravations. But what is more material is, that, although the woman was not alleged to be quick with child, yet it is averred that she was pregnant and big with child, and that the act was done by the defendant wilfully, and with intent feloniously, wilfully, and of his malice aforethought, to kill and murder the child with which she was so big and pregnant. And in other counts, it is laid that drugs were administered to her, she being pregnant with another child, and with intent to cause and procure her to miscarry and bring forth said child dead, &c. The whole proceeds on the averment, that she was then pregnant with a child, then so far advanced as to be regarded in law as having a separate existence, a life capable of being destroyed; which is equivalent to the averment that she was quick with child. See 15 Pick. 256.
By St. 1845, c 87, provision is made for the punishment of the offence Ivith which the defendant was charged in this case.