It is insisted that the court erred in admitting the dying declarations of Clara Penry, the girl upon whom the abortion was produced, and in charging the jury, that in determining the defendant’s guilt, they had a right to consider such dying declarations.
Under the statute in question (Laws of 1872, chap. 181, § 1), for the violation of which the prisoner was indicted, the death of the mother or of the child is the substance of the offense, and without the death of the one or the other, no crime is made out within this provision. This is a gravamen of the charge, without proof of which it is not complete or consummated. True, the administering, or the prescribing, or the advising, or procuring a woman to take medicine, and the use and employment, or advising or procuring her to submit to the use or employment of any instrument or other means, with the intent to produce a miscarriage, is an essential and an important part of the crime; but all of those- do not establish an offense under this section, unless death ensues. While these acts may, perhaps, be punishable of themselves, and constitute a crime under other provisions of law, they do not establish the entire offense charged in the indictment, and it is not made out, unless the death of the child or the mother ensues and is proved.
Even if these elements are preliminary to and a portion of the crime, it cannot be denied that the death of the mother or of the child as a consequence of them is the main feature, and the substance, without the existence of which it is incomplete. Such being the case, the dying declarations were competent within the rule laid down in the authorities, that they are admissible when death is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. 3 Green! Ev., § 156.
There is no force in the objection that the indictment is bad, because the offense is laid in the county of. Madison, nor in the *215point taken, that the third count should have been quashed, upon the ground that it contained two separate and distinct offenses.
We are, however, of the opinion that the court erred in admitting evidence of the declarations of the deceased after her return home with the defendant. We think that they did not constitute a part of the res gestee, and were not admissible as the acts and declarations of a conspirator, for the purpose of showing the prosecution of a common design, and carrying out the unlawful combination. Every thing had been done to produce the abortion, and hence the declarations were after a crime had been actually committed. True, the abortion had not yet been produced, nor had death ensued as its consequence, but these were the results of what had been done, and did not constitute a part of the act perpetrated in committing the crime. It is also true that medicine was administered before the abortion was procured, and directions were given as to the lying-in of the deceased, and as to her treatment; but the evidence fails to show that these constituted any part of the act necessary to complete the-offense. And here lies the distinction, that, as the evidence stood, the declarations proved were after every thing had been done to accomplish and to consummate the crime, and not before, and hence they were inadmissible, and the court erred in its decision.
For the error last stated, the conviction must be reversed, and a new trial ordered at the Otsego oyer and terminer.
Conviction reversed and new trial ordered.