83 N.Y. 462 | NY | 1881
This case comes up on writ of error on the judgment record alone, and the sole error assigned is that the indictment is defective.
The statute under which it is framed (3 R.S. 932, § 11), [6th ed.], provides for the punishment of every person who shall administer to any pregnant woman any medicine, etc., or shall use or employ any instrument or other means whatever with intent thereby to produce the miscarriage of any such woman. The indictment charges that the prisoner used and employed an instrument upon the body and womb of one Minnie Pape, she being then a woman with child, with intent thereby to produce her miscarriage. The alleged defect consists in describing the patient as a woman then with child, instead of describing her in the words of the statute as a "pregnant woman."
The counsel for the prisoner cites authorities showing that in indictments for statutory offenses, it is in general sufficient to charge or describe the offense in the words of the statute, but these authorities do not establish that it is indispensable to employ the precise words. The indictment must state all the facts constituting the statutory offense so as to bring the accused precisely within the provisions of the statute. (People v. Allen, *464 5 Den. 79; People v. Taylor, 3 Den. 93.) But the pleader need not employ the identical words; he may, if he choose, use words which are their equivalent in meaning. (Bishop's Crim. Proc., vol. 1, 612 [2d ed.].
It cannot be doubted that the words, "a woman with child," are in their ordinary sense synonymous with "a pregnant woman." They are a definition of the shorter term. It is conceivable that they might be used in a different sense, and so might the word "pregnant" be employed in such a connection as not to denote pregnancy with child. But certainly in the connection in which the words are used in this indictment they can have no other meaning than that the woman was pregnant with child, and the instrument was used to produce a miscarriage. It is scarcely necessary to call in the aid of the statute of jeofails to sustain the judgment.
The judgment should be affirmed.
All concur.
Judgment affirmed.
