delivered the opinion of the ‘Court:
This is an indictment against the plaintiff in error for an attempt to produce an abortion. He has been tried before a jury and found guilty, and sentenced by the Circuit Court to imprisonment for one year in the penitentiary.
The indictment contained four counts. Motion was made to quash, and was sustained as to the first and third counts, but overruled as to the second and fourth. After return of verdict of guilty, motions for new trial and in arrest of judgment were made and overruled, and exceptions taken.
First, it is charged by the plaintiff in error, that the second and fourth counts of the indictment are defective, because they do not allege an intent to procure an abortion.
The second count charges that Freeman J. Scott on, etc., at, etc., “did unlawfully, feloniously and wilfully use and employ a certain instrument, called a ‘speculum,’ and a certain instrument called a ‘catheter,’ and a certain instrument called a ‘sound,’ and a certain instrument called a ‘forceps,’ and a certain metallic instrument the name of which is to said jurors unknown, and in and upon one Ruth Aument, who was then and there a woman pregnant with child, by then and there forcing, thrusting and inserting said instruments into the private parts and womb of the said Ruth Aument, then and there did thereby unlawfully, feloniously and wilfully attempt to procure and produce the miscarriage of said Ruth Aument, it not being then and there necessary to procure or produce such miscarriage for the preservation of the life of the said Ruth Aument,” etc.
The fourth count charges that Freeman J. Scott on, etc., at, etc., “did unlawfully, feloniously and wilfully use and employ a certain instrument called a ‘speculum,’ and a certain instrument called a ‘sound,’ and a certain instrument called a ‘catheter,’ and a certain instrument called a ‘forceps,’ in and upon one Ruth Aument, then and there being a woman pregnant with child, by then and there forcing, thrusting and inserting said instruments into the private parts and womb of the said Ruth Aument, and then and there did thereby unlawfully, feloniously and wilfully attempt to procure and produce the miscarriage of the said Ruth Aument, and neither of said instruments was then and there used or employed by said Freeman J. Scott, as aforesaid, as necessary for the preservation of the life of said Ruth Aument, and said Freeman J. Scott did not then and there attempt, as aforesaid, to procure or produce the miscarriage of said Ruth Aument as necessary for the preservation of the life of said Ruth Aument, ” etc.
In Baker v. The People, 105 Ill. 452, we said in regard to such an indictment as this one: “We think the indictment is substantially good, and that consequently there was no error in overruling the motion to quash.” Although the point here urged was not specifically made in the Baker case, we think the observation above quoted is applicable to the second and fourth counts of the present indictment, notwithstanding the absence therefrom of an allegation of intent.
Section 468 of our criminal code provides that “every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” .The statute, under which the present indictment was found, is as follows: “Whoever, by means of any instrument, medicine, drug, or other means whatever, causes any woman, pregnant with child, to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother’s life, shall be imprisoned in the penitentiary not less than one year nor more than ten years.” (1 Starr & Curts, pp. 753, 857, and secs. 3 and 468).
The counts as above set forth not only charge the offense in the language of the statute, but so plainly that the nature of the offense was easily understood by the jury. (Cole v. The People, 84 Ill. 216; Fuller v. The People, 92 id. 182; Loehr v. The People, 132 id. 504).
It is a principle of pleading that whatever is included in or necessarily implied from an express allegation, need not be otherwise averred. (Baysinger v. The People, 115 Ill. 419; Maynard v. The People, 135 id. 416). Although the statute does not use the word, “intent,” yet the word, “attempt,” which it does use, necessarily includes intent. (Thompson v. The People, 96 Ill. 158). “An .attempt is an intent to do a particular thing with an act toward it falling short of the thing intended.” (1 Bishop on Crim. Law, sec. 728). “When we say that a man attempted to do a thing, we mean that he intended to do., specifically, it, and proceeded a certain way in the doing.” (Id. sec. 729). “It seems impossible to doubt, that the only distinction between an intent, and an attempt to do a thing, is, that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution.” (Prince v. State, 35 Ala, 367; Lewis v. State, id. 380; Gray v. State, 63 id. 73; Hart v. State, 38 Tex. 382; Johnson v. State, 14 Ga. 55). Counsel for plaintiff in error refer to several cases, where the indictments were framed under statutes which used the word, “intent;” but these cases have no application here, where the statute uses the word, “attempt,” only.
These counts sufficiently set out the facts, from which it would appear, that an attempt was made to produce a miscarriage. (Loehr v. The People, supra). They allege, that Scott used certain instruments, which are named, in and upon Euth Aument, a woman pregnant with child, by forcing and inserting them into her womb, and thereby attempted to produce the miscarriage, it not being necessary to do so to preserve her life. The statute is aimed at “those, who, with the intent and design of producing abortion, shall use any means to that end,” (Slattery v. The People, 76 Ill. 217).
Second, it is claimed that there was error in the giving and refusal of instructions. The eleventh instruction given for the plaintiff is objected to, upon the ground that the jury are required to find that the defendant attempted with instruments to produce the miscarriage as charged, but are not required to find that such attempt was made with the intent to produce a miscarriage. The observations already made in regard to the indictment apply to this instruction. If the jury found that defendant made the attempt, they must necessarily have found that a guilty intent was involved. But whatever defect may have existed in the eleventh instruction in this regard was cured by the seventh instruction given for the defendant, which contained the following direction: “unless the people have further proved to the satisfaction of the jury, beyond all reasonable doubt, that Freeman J. Scott, * * * inserted these instruments at the time and place as charged in the indictment, intending then and there to produce an abortion upon Ruth Aument, you should find the defendant not guilty.”
It is next assigned as error, that the court refused to give the twentieth instruction asked by the defendant. The peculiarity of this instruction is, that it directs the minds of the-jury to the question whether or not an attempt was made to-produce an abortion, as distinct and separate from the question whether or not such attempt was made by the defendant. In order to understand the meaning of the instruction it will be necessary to advert to some of the facts.
"The plaintiff in error was a physician, 29 years old, who-had been educated at the Hahneman medical college in Chicago. He was unmarried, and was practicing his profession in the village of Rock Falls, in a neighborhood where he had lived from boyhood, and where his parents and sisters resided. Ruth Aument also lived in Rock Falls in a small house with her father, who was a widower and worked, as a machinist, in a foundry. She and her father lived together, and she kept house for him. She and he were the only inmates of the household. In January, 1889, she was sick, and the plaintiff in error was called in to see her professionally. She-was then about eighteen years old. The acquaintance thus-begun between her and Scott ripened into intimacy. In the summer and fall of 1889 he was much in her company, visiting her at her home, riding with her, going'with her to church, to entertainments and to the houses of members of his own family. She swears that he had intercourse with her for the first time in the latter part of August, 1889, in the sitting .room at her home; that this intercourse continued during the following September and October; that he instructed her what methods it was necessary to adopt in order to avoid pregnancy; that she failed to have her sickness at the regular time about the 15th day of October; that, a few days after that, he performed an operation upon her by inserting instruments into her womb, telling her that she would be sick in the usual way as the result of such operation; that she failed to be sick at the regular time in November; that, a few days before, and also a few days after, the 15th of November, he-again performed the same operation with the same, or similar instruments, and also using another instrument not used in-October ; that he told her he might be sent to State’s Prison, if what he had done should be found out; that, on Thanksgiving day, she and he went to a party together, and, upon their return, she told him he had “not helped her,” and about; this time' wrote to him, intimating an intention to commit, suicide; that he said he could give her medicine, but was afraid to do so; that on April 15,1890, she sent for him, and told him she could hide her condition no longer, and intended to tell her father, etc. In answer to questions of counsel, she-describes, when upon the stand as a witness, the instruments referred to, and the details of the operations therewith, etc.
The defendant testified in his own behalf, and swore that he-had never had intercourse with her, and had never attempted to produce an abortion upon her. He admits, that she sent for him on April 15, and told hint of her pregnancy, and asked him what he could do for her, but he says that he declined to-do anything, and left herv Her father and his father were-informed of her condition. Interviews were had between them and their lawyers. An effort was made to induce her to sign, a paper exonerating the defendant, which she refused to sign. On April 25, 1890, she and her father took a train to go to Chicago. When the train reached Compton, she gave birth to a child in the car. The child lived about fifteen minutes. At Compton she was taken to the house of a physician named Chandler, where she remained several weeks, and, while there, was visited by a deputy sheriff of the county, named Drake. A physician testified upon the -trial, that the age of the foetus was seven months, or seven months and a half.
The defendant examined two medical witnesses as experts, for the purpose of showing that, if a physician had performed the operations which the prosecuting witness testified to, an abortion would have been produced, and also for the purpose of showing, that the foetus did not show such injury as would have been caused by such operations. The expert testimony tends as much to show, that the operations testified to might not produce a miscarriage, as that they would produce a miscarriage. It also tends to show, that an examination of a foetus would not certainly disclose, in all cases, whether an ""attempt had been made to arrest its development or not.
The twentieth instruction directed the attention of the jury exclusively to the testimony of the expert witnesses. It told them that it was “necessary for the people to prove to the satisfaction of the jury, beyond all reasonable doubt, that some person attempted, in the manner and form as charged in the indictment, and at the time and place therein alleged, to commit on the person of one Ruth Aument, a criminal abortion;” and that it was just as necessary to prove that the instruments vs'ere inserted into her womb in manner and form as alleged, and beyond all reasonable doubt, as it was to prove beyond all reasonable doubt who inserted them; and in determining whether there was ever any attempt at the time and place and in the manner and form as alleged, to commit an abortion, etc., they were at liberty to take into consideration the testimony of the medical experts, and, if, “after considering carefully all of such testimony, in connection wdth all the other facts and circumstances detailed on this trial,” they entertained any reasonable doubt “as to whether there was ever any attempt to commit an abortion,” etc., then it would be their sworn duty to find the defendant not guilty, etc.
We think that this instruction was clearly erroneous. It virtually directed the jury to disregard the testimony of the prosecuting witness. The court gave for the defendant at his request eighteen instructions. Several of these called attention to certain items of defendant’s proof, and used this language: “then you should take such fact into consideration.” The 20th instruction was calculated to make the impression upon the minds of the jury that they were only to consider the expert testimony in connection with such facts, and not in -connection with all the evidence. The defendant claimed that the prosecuting witness had not stated facts. The question was not whether somebody else attempted to produce a miscarriage, but whether the defendant made such attempt. The -opinions of the experts, based upon the appearance of the foetus and upon their judgment as to the effects likely to result from the operations testified to, constituted one item of testimony bearing upon the question involved, but not the only item. It was the duty of the jury to consider all the evidence. The plaintiff in error could not have been injured by the refusal to give the 20th instruction, because the jury were told in other instructions to carefully consider all of the testimony introduced, which included as well that of the experts as of the other witnesses. For example, the second instruction given for the defendant contained the following direction: "the law requires the jury to take into consideration all the testimony elicited from the defendant’s witnesses as well as that detailed by the prosecution, and if, after a full and dispassionate consideration of all of the evidence in the case, you still have any reasonable doubt in making up a conclusion as to whether or not the defendant did commit the crime of attempt to commit abortion as alleged, then it will be your duty to find the defendant not guilty.”
The instruction was also erroneous in assuming, that it was necessary to find that all of the instruments named in the indictment were actually used. Where an indictment charges that an attempt has been made to produce a miscarriage with several different instruments, it is not necessary to prove that the defendant used all the instruments described. The indictment will be sustained by proving that one of the instruments was used as alleged. (The State v. McClintock, 1 G. Greene’s Iowa Rep. 392; Bishop’s Direc. and Forms, sec. 228.) The 18th instruction, asked by and given for the defendants, states, that “it is the duty of the people to prove beyond all reasonable doubt, that the defendant made the attempt, etc., by inserting the several instruments, or some, or one of them,” etc. There was no error in refusing the instructions of the defendant numbered 21 and 25, which are objectionable as singling out particular portions of the evidence, and directing the jury to consider such portions, to the exclusion of other parts of the testimony equally important. Such instructions: have often been condemned by this Court. (Kennedy v. The People, 44 Ill. 285; Logg v. People, 92 id. 602; Coon v. People, 99 id. 371; Chambers v. People, 105 id. 417; Campbell v. People, 109 id. 576.) All that was material in these instructions was embraced in instructions that were given. Instruction no. 21 is liable to the same objection as no. 20; it calls attention “to the defendant’s capacity for committing an abortion if he desired to,” that is to say, to the probability that a miscarriage would have ensued, if a medical man had done what he is said to have done. Defendant sought to: show, that he had boils upon his hands to such an extent in November, that he could not have performed the operations-said to have been performed by him in that month. Instruction no. 25 called attention to the subject of these boils, and its refusal could have done no harm, as the jury were especially directed to take this subject into consideration in instruction no. 10 given for defendant.
Instruction no. 22 tells the jury, that it was not necessary for them to determine whether Scott ever had intercourse with Ruth Aument or not, or whether he was the father of her child or not. We think, that this instruction, in the form in which it was expressed, was properly refused. It is true, that the charge against the defendant was not seduction, but an attempt to procure an abortion. It was proper, however, for the People to introduce evidence showing a motive for making the attempt. It is not claimed that plaintiff in error was influenced by a desire to make money, nor is it shown that the girl had any money to pay him. The testimony as to the paternity of the child was important, because it tended to show a motive for the act charged. If it was true, that he had been criminally intimate with Euth Aument, the desire of concealment and the fear of disgrace may have operated as inducements to commit the crime. The vice of the instruction lay in the fact, that it was calculated to induce the jury to ignore the testimony as'to the defendant’s intercourse with the girl.
Refused instruction no. 23 has reference to the right of the defendant to testify in his own behalf, and as to the duty of the jury to consider his testimony as a witness. This instruction was proper enough, but it was a mere repetition of instructions numbered 11 and 12, which were given for the defendant, and, therefore, its refusal did no harm.
The defendant made use of a diary, alleged to have been kept by him in the summer and fall of 1889, for the purpose Of refreshing his recollection as to what he did upon particular days during that period. The People claimed, that the entries "were not made at the dates at which they purported to have been made, but that they were prepared afterwards for the trial. The testimony of the defendant tended to show that the entries were genuine and honest, while the appearance of the diary and other facts and circumstances tended to show to the contrary. The record recites that, by agreement of counsel, the diary should be admitted not as evidence to prove the truth of the facts stated therein,- but with the right to either party to argue to the jury the question whether or not such entries were genuine, and made at the dates at which they purported to have been made. Instruction No. 24, which has reference to this diary, begins in this way: “The court further instructs the jury, that the diary of the defendant, kept through the year 1889, is in evidence, ” etc. The instruction was properly refused, because it assumes the existence of the very fact which was in dispute, namely, whether the diary was kept in 1889, or made up after 1889 had passed.
Refused instruction number 26 tells the jury, that the prosecuting witness had sworn that defendant was the father of the child, and that defendant had sworn that he was not the father; that both were competent witnesses; that, if the jury believed them to be of equal credibility, and that “their testimony is the only testimony in the ease in reference to the truth or falsity of that proposition,” then the testimony of the one was an offset to that of the other, and the question of the paternity of the child was not established by the People. This instruction was properly refused as tending to make the impression, that the testimony of the two interested parties was the only evidence upon the question of the paternity of the child. There were many other facts and circumstances and items of proof bearing upon this question, though there was no direct evidence in relation thereto except the statements of the parties themselves. It is proper to instruct the jury to determine from the evidence whether a certain conclusion is thereby established, but it is not proper to instruct them to determine whether the testimony of certain witnesses is the only testimony upon a given question. All the evidence, which is properly admitted by the Court, is supposed to bear upon the issues involved.
Besides the eighteen instructions given for the plaintiff in error and at his request, twelve were given for the People. We have carefully examined these thirty instructions, in connection with those hereinbefore commented upon, and we think that they were all fair, and many of them exceedingly favorable to the plaintiff in error.
Third, it is assigned as error that there was an improper admission of testimony.
It is said, that the Court, admitted testimony as to three distinct felonies. We think that the second and fourth counts charge but one offense. The same offense may be set out in several counts in different language. It is said that the use of the instruments on or about October 15 was one attempt, and the use of them twice in the middle of November constituted two other attempts; and that proof of three different attempts was thus allowed to come in. Upon a careful examination of the record, we find the defendant’s counsel allowed evidence of the use of the instruments at three different times to be admitted without objection; nor do we find that any motion was made to exclude any part of this testimony, nor was the court asked to put the People to their election. But we think the testimony was competent. Acts of the defendant, tending to show his knowledge of a woman’s pregnancy and his intention to commit an abortion upon her, may be proved whether they were prior or subsequent to the particular act charged in the indictment. The three acts proven in this case were not unconnected, but were parts of one transaction; they all together constituted but one attempt to procure the same abortion. “Where several felonies are connected together and form part of one entire transaction, then the one is evidence of the character of the other.” (Lamb v. State, 66 Md. 287.) “Whether it (the evidence) was of acts, which formed part of the principal transaction, or of acts of the defendant at other times, it tended to prove attempts of the defendant to procure the identical result, the intent to procure which constituted the gist of the offense charged.” (Commonwealth v. Corbin, 136 Mass. 430.)
It is objected, that Dr. Chandler was allowed to state what the prosecuting witness said to him while she was sick at his house in Compton after the birth of her child. As the defendant was not present at the conversation with Dr. Chandler, evidence of it would have been clearly improper if it had been introduced by the People as a part of their original case; but it was-introduced as rebutting testimony. Defendant’s counsel had asked the prosecuting witness upon cross-examination as to what she said to Drake and Dr. Chandler at Compton, and had introduced in evidence a letter written by her on April 29, 1890, from Compton while she was sick, which letter the defense had obtained possession of through the efforts of a female detective, and in which the witness referred to what she said at that interview at Compton. Under these circumstances the rebutting testimony was not incompetent. If a witness testifies to a part of a conversation, the other party is entitled to show all that was said -on the same subject in that conversation. Where a witness is asked if she did not say a certain thing and denies having said it, she may afterwards show what she did say. (Tracy v. People, 97 Ill. 105 ; Bressler v. People, 117 id. 435).
Fourth, it is further objected, that the People’s counsel were allowed to read to the jury from medical books. Nothing was read except what was a part of the expert testimony. In questioning the physicians who testified, a passage was read to them out of a medical book, and they were asked if the statements therein made accorded with their observations, to which inquiry they answered in the affirmative. It was such passage only that was read to the jury upon the argument, and it was properly read because it was in evidence,
Objection is made to some remarks of the State’s Attorney in his address to the jury. The objection is not a sufficient cause for reversal in this case. The remarks are not shown by proper recital in the bill of exceptions. The attention of the trial judge was not .called to them when they were made, but they were allowed to pass unchallenged. (Mayes v. People, 106 Ill. 314; Wilson v. People, 64 id. 327; Campbell v. People, 109 id. 577; Gannon v. People, 127 id. 518).
Fifth, It is claimed that the verdict is not sustained by the evidence. It would serve no useful purpose to enter into a detailed discussion of the testimony. We have made a careful examination of it, and we are unable to say that the verdict was wrong; no errors have intervened that have operated to the prejudice of plaintiff in error; it was the province of the jury to pass upon the question of his guilt or innocence; it was for them to determine the credibility of the witnesses, whom they saw, and heard, and observed; it would be “violative of both the letter and the spirit of our criminal code,” for us to set aside the verdict under these circumstances. (Cronk v. The People, 131 Ill. 60; Watt v. People, 126 id. 26; Dacey v. People, 116 id. 578; Davis v. People, 114 id. 99).
The judgment of the Circuit Court is affirmed.
Judgment affirmed.