(concurring in part and dissenting in part).
I agree with the holding as it applies to §§ 6-77 and 6-78, W.S.1957, but I dissent from that portion of the opinion relating to § 6-105, W.S.1957, 1973 Cum.Supp., which section I would also hold as unconstitutional.
*646APPENDIX
§ 6-77. Criminal abortion. — Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman; or with like intent uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be imprisoned in the penitentiary not more than fourteen years. (Laws 1890, ch. 73, § 31; R. S. 1899, § 4969; C. S. 1910, § 5808; C. S. 1920, § 7086; R. S. 1931, § 32-222; C. S. 1945, § 9-223.)
Cross references. — As to minimum punishment for a felony, see § 6-6.
As to killing unborn child by assault on mother, see § 6-71. As to sale, etc., of medicine, instruments or articles for procuring abortion, see § 6-103. As to mailing, carrying or giving oral information as to instruments, articles or medicine for procuring abortion, see § 6-104. As to advertising medicine, instruments or apparatus for procuring abortion or miscarriage, see § 6-105.
ALR and C.J.S. references. — Criminal responsibility of one other than subject or actual perpetrator of abortion, 4 ALR 351.
Criminal responsibility of one on whom abortion is committed for conspiring to commit the crime, 5 ALR. 788; 74 ALR 1110; 131 ALR 1322.
Revocation of license of physician or surgeon for performing abortion or giving information as to abortion, 54 ALR 1504; 82 ALR 1184, 1186.
Necessity, to ' warrant conviction of abortion, that fetus be living at time of commission of act, 16. ALR2d 949.
Right of action for injury to or death of woman who consents to abortion, 21 ALR2d 369.
Pregnancy as element of abortion, 46 ALR2d 1393.
Entrapment to commit or attempt abortion, 53 ALR2d 1156.
1 C.J.S. Abortion §§ 1 to 40.
ANNOTATIONS APPEARING IN 1945 COMPILED STATUTES.
Decisions Under Law of Origin.
Similar to Burns’ Indiana Statutes, § 10-105, to which the following cases apply:
“Abortion” defined. — Causing an unlawful miscarriage of a pregnant woman is an abortion. Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465.
Conviction as principal. • — • Furnishing medicine to produce an abortion may constitute the offense, though the party was not present when the medicine was administered. McCaughey v. State, 156 Ind. 41, 59 N. E. 169.
Corpus delicti. — The offense of abortion is complete if either miscarriage or death results from the use of an instrument with criminal intent. Swanson v. State, 222 Ind. 217, 52 N. E. (2d) 616.
Dying declaration. — Dying declaration admissible. Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815.
Indictment. — Different means of producing an abortion may be alleged in separate counts in the indictment. Diehl v. State, 157 Ind. 549, 62 N. E. 51.
Manslaughter distinguished. — Where death results it was proper to prosecute hereunder and not for manslaughter. Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815.
§ 6-78. Soliciting miscarriage. — Every woman who shall solicit of any person any medicine, drug or substance or thing whatever, and shall take the same, or shall submit to any operation or other means whatever, with intent thereby to procure a miscarriage (except when necessary for the purpose of saving the life of the mother or child), shall be fined not more than five hundred dollars and imprisoned in the county jail not more than six months; and any person who, in any manner whatever, unlawfully aids or assists any such woman to a violation of this section, shall be liable to the same penalty. (Laws 1890, ch. 73, § 32; R. S. 1899, § 4970; C. S. 1910, § 5809; C. S. 1920, § 7087; R. S. 1931, § 32-223; C. S. 1945, § 9-224.)
Editor's note. — Sections 33 and 34, ch. 73, Laws 1890, relating to libel and blackmailing, respectively, have been compiled as §§ 6-117 and 6-147, respectively.
C.J.S. reference. — 1 C.J.S. Abortion § 14.
§ 6-105. Advertising drug or nostrum for procuring abortion or miscarriage. — Whoever prints or publishes any advertisement of any drug or nostrum with intent to obtain utilization of such drug or nostrum for procuring abortion or miscarriage; or sells or gives away, or keeps for sale or gratuitous distribution, any newspaper, circular, pamphlet, or book containing such advertise-*647merit, or any account or description, of such drug or nostrum with intent to obtain utilization of such drugs or nostrum to procure abortion or miscarriage, shall be fined not more than one hundred dollars, to which may be added imprisonment in the county jail for not more than six months. (Laws 1890, ch. 73, § 83; R. S. 1899, § 5063; C. S. 1910, § 5913; C. S. 1920, § 7202; R-. S. 1931, § 32-520; C. S. 1945, § 9-515; Laws 1969, ch. 32, § 9.)
The 1989 amendment so changed this section that a detailed comparison is not here practicable.