I. J. A. L. Crоokham appeared at the instance of private parties to assist the district attorney in practice: trial °f the cause. There was no order of the district attor- e0111.f; appointing, said Crookham as associate counsel. The defendant objected to his appearance, and objected to his making any argument in the cause, and to his taking any part therein. The objection was overruled, and thе defendant insists that this ruling was erroneous. .
"We think the practice of allowing district attorneys to have the assistаnce of associate counsel in the trial of criminal cases has been too long acquiesced in, in this State, to be now called in question. Crookham did not appear as an assistant without the consеnt of the district attorney and the court. If he did, the objection to his taking part in the trial would have been sustainеd. We can see no objection to leaving the matter of allowing associate counsel in the disсretion of the court and district attorney.
The defendant asked the court to instruct the jury that the crime could not be committed upon a woman who was not quick with child. The instruction was, we think, correctly refused. The statute makes no suсh qualification. The crime consists in attempting to produce the miscarriage of any pregnant woman. The crime is complete if the attempt be made at any time during pregnancy.
In this, we think, there was no error. The statute provides that the administering of “any substance" with the criminal intent shall constitute the crime. A party who, with the necessary criminal intent, uses any substance to produce a miscarriage, surely cannot be held innocent bеcause he mistakenly administered a drug or substance which did not produce the result intended. It is the intent, and not thе “substance ” used, that determines the criminality. The name of the drug or substance need not be given in the indictment. State v. Vawter,
IY. The defendant is a married woman. There was evidence upon the trial tending to show that she went to the house where thе complaining witness resided, and induced her to go part of the way to defendant’s house, stating that the defеndant’s husband wanted to see her, and that “if there was anything wrong he could bring her round. ” The parties met defendant’s husband, who told the witness to come to him, which she did, and the defendant then went away.
It was upon this occasion thаt the husband of defendant made the alleged attempt to produce the miscarriage. ' This occurrеd about May 1,1876.
The State interrogated the witness as to conversations with defendant in October previous. Shе testified that defendant told the witness that she knew her husband had had criminal intercourse with the witness, and that she did not сare. She also testified that defendant, at another time, requested her to meet her husband. Objection to this evidence was overruled,
Tbe court, we think, correctly instructed tbe jury that a ¡prima facie ease of coercion was established when it was shown that tbe dеfendant was a married woman, and that tbe criminal act was done in tbe presence of the husband, and thаt this presumption might be rebutted by evidence that tbe acts of tbe wife were done by ber while not in ber husband’s presence, nor so immediately near him as fairly to be held under his control, and in bis presence.
Now, bow tbe consent of tbe wife to tbe husband’s illicit intercourse with the prosecuting witness, months before tbe alleged crimе was committed, would tend to rebut tbe presumption of coercion, in the attempt to produce а miscarriage, we are at a loss to discover. True, it tends to show that tbe wife connived at ber husband’s adultery, but its effect would rather be to show that, instead of acting independent of tbe coercion of ber husbаnd, she was so entirely under bis control as to consent to bis adulterous intercourse with tbe prosecuting witness. Nо wife of any individuality, self-respect, or independence of thought or action, would consent to such а crime against herself.
In our opinion this evidence should not have been admitted. If it bad no other tendenсy it was calculated to prejudice tbe defendant in the estimation of tbe jury. We are tbe more reаdy to so bold in view of the fact that tbe defendant showed by quite a number of witnesses that she was a woman of gоod character and reputation.
Other objections to the rulings of the court we do not regard as well taken, unless it may be tbe exception to tbe instruction upon tbe force to be given to tbe evidence as to tbe good character of tbe defendant. This instruction seems to be contrary to tbe rule established by this court in tbe case of The State v. Northrup & Bartlett,
REVERSED.