It is insisted that the court erred upon the trial in admitting a circular published by the prisoner two or three years previously, which circular tended to show that the prisoner was engaged in the business and practice of consulting in reference to the procuring of abortions. The prosecution had already introduced evidence which it was claimed established the commission of the offense charged in the indictment, and the proof showed that the treatment of the person upon whom the alleged abortion was procured was of. so severe a character that it might well have procured it. The circular was, I think, competent as a declaration of the prisoner that he made a specialty of this business, and was versed and skilled in regard to it. It corroborated the proof introduced upon the trial, and was a statement of himself to the effect that he made it part of his business to attend to cases of this kind. With evidence that an abortion had been procured while the deceased was under the prisoner’s "charge, his own advertisement that he was ready to perform operations of such a character certainly tended to strengthen the testimony already introduced, and was clearly admissible.
It was not analogous to evidence of the commission of other similar offenses, as the passing of other counterfeit money, than that charged in the indictment, to show the intent, but evidence directly bearing upon the question whether the prisoner was guilty ■of unlawfully procuring an abortion, and not in the pursuit of the ordinary and legitimate business of a medical practitioner in attending and prescribing for the deceased. But it was also competent to show the intent where the act itself might otherwise be lawful under the statute, for a violation of which the prisoner was indicted.
The exception to that portion of the charge of the'judge, “ that if they found an abortion had been committed upon her ” (the deceased), “ or an attempt at it made, and that the defendant was connected with it, and that the death resulted therefrom, they must convict,” was not, I think, well taken. '
It is claimed that the statute requires an affirmative act, and the charge only demands a “ connection,” and omits the qualification of the statute that the miscarriage must not have been necessary to *53preserve the life of the mother or the child. The charge of the judge must be considered in connection with the surrounding circumstances and as referring to a case where the abortion had been procured in violation of the statute, as was charged and claimed to have been proven. He intended in his charge to embrace and cover only an unlawful abortion, and the connection of the defendant with such a violation of law, and not a miscarriage which may have been authorized by the statute. This was the offense charged and attempted to be proved and nothing else; and if the language employed may, by possibility, have borne a different construction, the counsel of the prisoner should have asked the judge to charge more specifically. As he failed to do this, and as the fair interpretation of the charge to which the exception was taken, will not reasonably bear the construction claimed, there was no error in this respect.
It is also urged that the judge erred in refusing to charge that the jury could not convict of manslaughter under the first, third or fifth counts in the indictment, because neither of those charged the death of the mother or that of the child. The indictment contains but three counts, and in each of these the death of the mother is charged directly and distinctly. It is, I think, an erroneous construction of the indictment to claim that the first part of the first, second and third counts is each a count of itself, instead of being a portion of a count, and a statement of a portion of the acts done which constituted the offense preliminary to the concluding portion in which the death of the mother is charged. It follows that there was no error in this respect.
Ho other points are urged in favor of a reversal of the proceedings, and as there was no error the judgment and conviction must be affirmed, and proceedings remitted to Schenectady sessions with directions to proceed and sentence the prisoner.