dissenting.
If it were not for our holdings in Solander v. People, 2 Colo. 48, Johnson v. People, 33 Colo. 224, 80 Pac. 133, and Max v. People, 78 Colo. 178, 240 Pac. 697, I would be disposed to concur in the decision. Those cases involved murder by abortion, and in each case the trial court admitted declarations by the woman made out of the presence of the defendant. Whether such declarations were admissible depended upon whether there could be a conspiracy between a woman and another person to commit the crime of abortion upon the woman. We held that there could be; and we held, further, that the declarations were properly admitted, because in each case the woman conspired with the defendant to procure the abortion, and where there is a conspiracy a declaration by one of the conspirators is admissible against the other when made in furtherance of the common design. In the Solander case we said, among other things: “* * * where it ap*199pears that the woman not only submits to the unlawful attempt, but actively promotes it, by seeking the aid of others, and eagerly adopting the means suggested to accomplish the crime, it cannot be claimed that she is not a party to the criminal design. If the woman is not technically an accomplice, she may, nevertheless, conspire with others to produce the abortion, and the conspiracy being shown, her acts and declarations in furtherance of the common design are evidence against others engaged with her in the criminal act.” Two persons were there concerned; one was to give the illegal treatment, the other was to receive it. They had a common design — a common criminal purpose — to procure an abortion. There was, therefore, a conspiracy. If there were any difference in principle between those cases and the present one, the majority opinion doubtless would have specified wherein that difference consists. I am unable to see any such difference.
I respectfully dissent for the reasons stated above.