The information contained a count for murder. A second count charged manslaughter, setting forth in detail that the womаn had been killed by efforts of defendant and another to procure her miscarriage, the count being based оn section 15225, 3 Comp. Laws 1915:
“Section 34. Every person who shall wilfully'ad-minister to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriаge of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
The offense so defined by the statute is a misdemeanor.
We quote section 15224, 3 Comp. Laws 1915:
“Section 33. Every person who shall administer to any woman pregnant with a quick child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless thе same shall have been necessary to preserve the life of such mother, or shall have been advised by twо physicians to be necessary for such purpose, shall, in case the death of such child or of such mother bе thereby produced, be deemed guilty of manslaughter.”
The information was not filed under the section last quoted, as thеre is no averment that the woman
*571
was pregnant with quick child. The offense defined in section 15224 is made by the statute manslаughter, not murder.
People
v.
Olmstead,
The legislature did not intend to make the misconduct with intent to procure miscarriage, set forth in sectiоn 15225, where death of the woman ensues, a more serious offense than like misconduct with intent to destroy a quick child rеsulting in death, as set forth in section 15224. If death of the woman results from the act or acts with intent to procure miscarriаge as defined in section 15225, the offense is manslaughter.
People
v.
Abbott,
The trial judge in his charge defined murder in first and in second degree, instructed the jury to determine if defendant was guilty of murder so defined, and said further:
“If you find this respondent guilty of murder you must determine and stаte in your verdict which degree of murder you find him guilty of.
“Accordingly, as you find the facts to be, you may acquit respondent оf the graver charge of murder, but still find him guilty of a lesser charge.
“If you do not find this respondent Stahl guilty of murder of either the first or second degree, you will proceed to determine whether he is guilty of the remaining charge of manslaughter.” * * *
To suрport such instruction the prosecution insisted in the circuit court and here argues that there was some evidenсe that the operation on the woman was done with intent to kill her, and stress is laid on testimony that the autopsy disclоsed that the uterus had been punctured, evidently by a curet. But there is no evidence to support the charge of murder.
Dr. Clark, a witness for the people, stated the ease in fact:
*572 “The pregnant uterus is very taut, similar, perhaрs, to a balloon blown up, and it would depend on the. technique of the person as to whether it is easy to avоid the puncturing of the uterine wall. * * * From my examination the cause of her death was uterine hemorrhage and puerperal sepsis as a result of the evacuation of the contents of the uterus, ordinarily known as abortion.”
Thе technique of the operation does not of itself determine the character of the crime. The theоry of murder ought to have been omitted. But it is urged that defendant was not prejudiced in this respect because the jury аcquitted him of the major charge of murder, the verdict being of manslaughter; citing
People
v.
Knapp,
Whеn twelve jurors agree on amount or degree generally there must be composition of views. Here the jurors to determine degree were required improperly to compose their views between the major charge of murder in its degrees, and manslaughter. Defendant testified; if truly, he was innocent. The case was serious, sad. If the murder feаture had been omitted from the instructions, and the case submitted on the theory of manslaughter, it cannot now be said with certainty that the jury would have reached the same result.
We quote syllabus of
People
v.
Cismadija,
*573 “In a prosecution for an assault with intent to commit murder, it wаs error to charge the jury that respondent, who in a dispute with complaining witness, on being attacked by him, shot complaining witness in the scuffle, would have been guilty of murder if the victim; had died and if the other elements of the crime were present; because the record contained no evidence justifying a higher charge than manslaughter.”
And see 16 C. J. pp. 1025, 1043;
Gipe
v.
State,
The instruction is erroneous.
The peоple’s chief witness was a Mrs. Irving, a nurse. It is shown on a motion for a, new trial that she also testified in the separate аnd later trial of the doctor in the case, who was acquitted. A comparison of her testimony in the two cases shows inconsistencies seriously affecting the credibility of her testimony in the case at bar. In this connection, too, counsel assign error and argue at length that in cross-examination of such witness they were unduly and improperly restriсted by the court.
Some of my Brethren have the opinion that the error first above discussed is not of itself sufficient ground fоr reversal here, but all agree that on the whole record a new trial should be granted.
Judgment reversed. New trial granted. Defendant remanded to the custody of the sheriff.