Lamb v. State

Bryan, J.,

delivered the opinion of the Court..

The indictment against the traverser contained two counts. In the first it was charged that he attempted to commit an abortion on the body of one Rachel A. Taylor, who was a pregnant woman, and that the overt act towards the commission of the offence' was the supplying and delivering to the said Rachel, a large quantity of noxious and poisonous drugs and preparations for the purpose of causing the said abortion. The second count charged that the traverser did advise, solicit and incite the pregnant woman to take and swallow a large quantity of noxious and poisonous drugs and preparations for the purpose of causing an abortion. The traverser demurred to both counts of the indictment. The demurrers being overruled, he was put on his trial and acquitted on the first count, but convicted on the second. He was sentenced to imprisonment for two years in the House of Correction.

The traverser was not regarded by the Court below as having incurred the penalties prescribed by the statute of 1868. These are imprisonment in the penitentiary for a term not less than three years, or fine ; or by both fine and such imprisonment. This statute made great changes in the pre-existing law. It made it highly penal to give notice by advertisement, printing or publication of any place where any means could be procured for the purpose of producing abortion, or where any advice, direction, information or knowledge could be obtained for the purpose - of causing the miscarriage or abortion of any pregnant woman, at any period of her pregnancy ; and it also prescribed punishment for every person who should sell, or cause to be sold, any medicine for this purpose, or who should knowingly use, or cause to be used, any means whatsoever for the same. It excepted from its provisions certain operations by regular medical practitioners. By the ancient common law, according to Lord Coke, “if a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder.” But as the life of an infant was not supposed to begin until it stirred in the mother’s womb, it was not regarded as a criminal offence to commit an abortion in the early stages of pregnancy. A considerable change in the law has taken place in many jurisdictions by the silent and steady progress of judicial opinion ; and it has been frequently held by Courts of high character that abortion is a crime at common law without regard to the stage of gestation. In this State, however, the change has been effected by the action of the Legislature, and not by the decisions of the Courts. The offences to be punished are defined with great minuteness and particularity, and the scope of criminality in matters of this description is greatly enlarged. But the acts charged upon the traverser in the second count are not comprehended in the terms of the statute. The charge is that the traverser solicited a pregnant woman to take certain drugs for the purpose of causing an abortion. It is not stated that she took the drugs. The act is germane to those prohibited by the statute. It is an effort by solicitation to cause means to be used for a guilty purpose. It may be urged that a solicitation is an attempt, and that an attempt to commit a misdemeanor is a misdemeanor. Pursuing the same train of inference and reasoning, we may go a step further, and maintain that as the solicitation is a misdemeanor, an attempt at solicitation would, by the same rule, be also a misdemeanor. This process might be indefinitely extended, so as to reach persons very remotely separated from the act which the statute intended to punish. Certainly it would be a great public calamity to invent crimes by subtle, ingenious and astute deduction. In all free countries the criminal law ought to be plain, perspicuous and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only bythe application of artificial principles according to a mode of disquisition unknown in the ordinary business and pursuits of life. The Legislature, with ample power over the whole subject, determined what offences should be punished. If it had desired that other actions of a cognate character should become penal, it would have so enacted. It is the duty of the Courts to interpret and administer the legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it. It has frequently been stated that an attempt to commit a misdemeanor, is, by the common law, a misdemeanor. There are undoubtedly many instances in which this is true. But it cannot be maintained as a universal principle. The law has declared that an attempt to commit a felony, or a persuasion of another person to commit a felony, is a misdemeanor. And it has declared many actions to be misdemeanors where the purpose of the offender was not consummated, although if consummated, it would have been only an offence of this grade.' Acts of this description are well defined and their character well understood. There must be an unlawful purpose, and an act committed which would carry it into immediate execution, unless it were prevented by some counteracting force or circumstance which intervenes at the time. We may see an illustration of this doctrine in cases of assault and battery. A battery is defined to be the unlawful beating of another ; and an assault is an attempt to beat another without touching him. But it is held that a purpose to commit violence on the person of arfbther, if not accompanied by an effort to carry it into immediate execution, falls short of an assault; and that where ah unequivocal purpose of violence is accompanied hy any act, which, if not stopped, or diverted, will he followed by personal injury, the attempt is complete. State vs. Davis, 1 Iredell, (N. C.) Repts., 125. The law would not be a practical system if it did not define with precision the nature and circumstances of the attempts which are criminal, and determine what acts are necessary to make the attempt a substantive offence. In our judgment it has done so, and not left us to grope after results under the guidance of vague general expressions.

(Decided 23d June, 1887.)

The act described in the second count is extremely immoral and very, offensive to the sensibilities of all virtuous people, hut we have no power to make a law for its punishment. The demurrer to the second count ought to have been sustained, and. as the traverser was acquitted on the first count, he ought to have been discharged.

Judgment reversed.