Commonwealth v. Weible

Opinion by

Orlady, J.,

This defendant was convicted, under sec. 88 of the Act of March 31,1860, P. L. 382, 404, of unlawfully administering to herself a poison, drug or substance with intent to procure the miscarriage of a child with which she, at that time, was pregnant.

The court sustained a motion in arrest of judgment, for the reason that the act does not apply to the case of a woman who procures an abortion on herself, and that it is not an offense at common law in this state.

At common law in England the destruction of an unborn infant is a misdemeanor, and at an earlier period it seems to have been deemed homicide: 1 Russ, on Crimes, 671. It has also been held to be a misdemeanor in this state: Mills v. Commonwealth, 13 Pa. 627, in which case *209it was said, “It is a flagrant crime, at common law, to attempt to procure the miscarriage or abortion of a woman; because it interferes with and violates the mysteries of nature, in that process by which the human race is propagated and continued. It is a crime against nature which obstructs the formation of life, and therefore it is punished.” But that was a case in which the mother of the child was not indicted. The woman on whom the abortion has been performed is a competent witness against the defendant, even though she be regarded as an accomplice: 1 Whar. Crim. Ev., sec. 440.

In all cases the indictment must conform to the statute limiting and defining the offense: 1 Whar. Crim. Law, 597, and unless the offense is defined by statute, the mother who commits it on herself cannot be punished in this state, however heinous and unnatural it may be, and in order to secure her conviction the necessity for such a statutory declaration has been regarded as essential.

In England by 24 and 25 Vict., c. 100, sec. 58, a person who commits an abortion on herself is equally guilty with the person who commits an abortion on another and in most of the United States there is a provision made by statute for such a crime, but without such the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime: Com. v. Wood, 77 Mass. 85; State v. Murphy, 27 N. J. L. 112; State v. Hyer, 39 N. J. L. 598; Com. v. Boynton, 116 Mass. 343; Solander v. People, 2 Colo. 48; Smith v. Gaffard, 31 Ala. 45; Hatfield v. Gano, 15 Iowa, 177; Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319. By a statute in New York, sec. 295 of the Penal Code of 1891, it was made a crime: People v. Meyers, 5 N. Y. Crim. Reports. 120. A similar statute is operative in California, sec. 275, Penal Code. It seems that such legislation was deemed necessary in each of these states in order to convict the mother of the crime of abortion on herself.

In State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248, Judge Green says: “We are of the opinion that the pro*210curing of an abortion by the mother, or by another with her consent, is not an indictable offense at common-law. There is neither precedent nor authority for it. If the good of society requires that the evil should be suppressed by penal infliction, it is far better that it should be done by legislative enactment than that the courts should by judicial construction extend the penal code or multiply the object of criminal punishment.” See also Abrams v. Fooshee, 3 Iowa 273, 66 Am. Dec. 77.

The words used in sec. 88 of the code under which this indictment is framed, reasonably imply that the actor in the crime is intended to be some person other than the mother, and they must be given a strained and artificial construction to include her. This is the more apparent by sec. 89 which makes it an offense for any woman either by herself, or the procurement of others, to conceal the death of a bastard child. The omission of like apt words indicates that the codifiers did not mean to make the mother liable under sec. 88.

The conclusion reached by the trial judge is in accord with the great weight of authority, and the judgment is affirmed.