By the Court,
Nelson, Ch. J.By statute, 2 R. S. 578, § 21, it is enacted that every person who shall administer to any pregnant woman any medicine, &c. or use or employ any instruments, &c. with intent thereby to procure the miscarriage of any such woman, unless the same be necessary to preserve life, or be by the advice of two physicians, shall, upon conviction, be punished by imprisonment, &c. See also p. 550, § 9, where the punishment is enhanced if the woman be quick with child, and there be an intent to kill the child.
The above act makes the simple attempt to procure the abortion of a pregnant woman, beyond the excepted instances, an indictable offence ; and then, according to the rule given in Brooker v. Coffin, 5 Johns. R. 188, words imputing to a person this crime are actionable per se. See also 13 Johns. R. 275 and 124. The words here impute an indictable offence, involving moral turpitude.
It is insisted that the words, as set forth in the declaration, do not necessarily convey the charge in a criminal sense,; and that their natural import *357is not sought to be varied by averment or innuendo. The counts are inartificially and *loosely framed; but looking at them in con- [ *357 ] nection with the prefatory matter, we are of opinion the words should be regarded as used offensively, and as sufficient to put the party to his defence. The language accompanying the particular charge fairly implied that the defendant intended to put it forth in a criminal sense, and that the hearers should so understand it. If any explanation was given at the time, negativing this conclusion or effect upon the hearers, it should have been shewn by the defendant. Nothing of the kind appears.
It is also urged that the court erred in rejecting the evidence offered in justification; that the notice under the general issue was as broad as the charge. If we are right in our conclusion that the words as laid, in connection with the prefatory averments, impute to the plaintiff a crime within the 2.1st § of the statute, the notice falls short of a defence. It does not fix upon the plaintiff the crime; it simply charges him with assisting E. T. in procuring an abortion, without any averments bringing the act within the statute. The general rule is, that a plea of justification must contain the same degree of certainty and precision as are requisite in an indictment for the crime. A notice need not partake of the form and strict technicality of a plea; but it must be the same in substance and effect. The offence must be unequivocally put forth to avoid surprise. Starkie on Sl. 339. 13 Johns. R. 475. 19 id. 349.
We have, heretofore, held that the judge at the circuit may exercise a sound discretion as to the number to be sworn of impeaching and supporting witnesses. There must be some limit. Any one familiar with trials must be aware, that after some dozen of witnesses on a side have been examined, equally supporting and impeaching a party or witness, very little additional benefit is derived by enlarging the number. The relative strength of the testimony will be the same, however extended the examination. A balanced public opinion will appear.
New trial denied.