This case was decided in June.
Merrick, J.
This is an indictment under the “ act to punish unlawful attempts to cause abortion.” St. 1845, c. 27. The defendant was found not guilty of the charge alleged against him in the second count. By this acquittal his motion in arrest of judgment and his objections to the rulings of the court upon the questions of law, which arose at the trial in relation to that count, have become wholly unimportant, and therefore neither require nor admit of any further consideration.
During the trial the defendant submitted to the court a motion that the indictment might be quashed because it was insufficient in law; the first count being, as he alleged, obnoxious to the objection that it was double, in various particulars : 1st. In charging him as principal in the commission of the alleged offence by the use of instruments, and also as an accessory thereto, by the administering of ergot. 2d. By charging him with three distinct offences, namely, in procuring abortion, (1.) By the use of instruments; (2.) By the administering of ergot, and (3.) By violence applied by bis hand. And 3d. By charging him with the distinct crimes of manslaughter and of an attempt to procure an abortion. The verdict of the jury being against him, he then moved in arrest of judgment for the same causes. Both of these motions were overruled by the court; to which deter» minations exceptions were seasonably taken.
[429]*429Upon analyzing this count in the indictment, in which the charge against the defendant is set forth in great detail, and with much unnecessary circumlocution, it becomes apparent that there is no substantial foundation for any of these objections. He is not charged at all as an accessory, nor as having committed the crime of manslaughter, nor any other distinct offences. The averments that he provided ergot, and advised, ordered and commanded Stokes and Emerson to administer it to Susan A. Webster, then and there quick and pregnant with child, and by so ordering, commanding and advising, and by the taking and swallowing such ergot into her stomach by the said Webster, he did administer the same to her unlawfully and without lawful justification and with intent to cause and procure her to miscarry and be prematurely delivered of said child, constitute a full and distinct allegation that he committed the offence prohibited by the statute; and thus charge him directly as the principal felon, and not as the accessory of others in the perpetration of the offence set forth in the indictment.
Nor is he charged as having committed the crime of manslaughter. The statute provides that if the woman shall die in consequence of the doing of any of the acts prohibited, which are done to procure and cause her miscarriage, the punishment to be inflicted upon the offender shall, to a certain specified extent, be increased and aggravated. And the averment that the defendant, by the several means mentioned in the indictment, and with the intents and purposes therein set forth, namely, to cause her miscarriage and to procure the premature delivery of her child, did kill the said Webster, is only alleging in another form of words that she died in consequence of the use of the means and instruments, and the administering of the ergot provided, by the defendant. Taken in connection with other parts of the accusation, no sensible construction can be put upon the language used, which does not lead conclusively to this result.
All the averments in reference to the violence upon the person of Webster by the hand of the defendant were evidently [430]*430introduced into the indictment upon the assumption thai; the severance of the umbilical cord, after the child had come forth from the body of the mother, was essential to constitute and complete the miscarriage. If this assumption was correct, then the means employed to make that severance might and should have been set forth as elements or constituent parts of the offence. But otherwise, and as it was, we think, correctly ruled by the court, if the pregnancy ceased when the child was removed from the body of the mother, the averment of violence by the hand of the defendant at that period constituted no part of the description of the acts prohibited by the statute, and was therefore an immaterial and superfluous statement. For this reason they should be, as they were by the presiding judge at the trial, rejected as surplusage. Commonwealth v. Pray, 13 Pick. 359. Commonwealth v. Simpson, 9 Met. 138.
Rejecting the averments of violence by the hand of the defendant upon the person of Webster, the indictment charges that he used instruments and means, and administered ergot maliciously and without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child. This is not, as is supposed in the objection argued in his behalf, an averment or accusation of the commission of distinct offences, but of one offence, in the use of some of the different means prohibited by law. The statute inhibits the use of “ any means whatever ” to procure, without lawful justification, a miscarriage and abortion. Many expedients may be resorted to and employed for this purpose, and several distinct and separate processes and operations may be actually used to accomplish it. It is a well settled principle that when a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offence, those which are actually done in the course and progress of its commission may be coupled in one count. Whart. Crim. Law, § 390 & cases cited. This principle has often been recognized and sanctioned in this court. In the case of Commonwealth v. Eaton, 15 Pick. 273, an indictment charging the defendant with “ selling and offering [431]*431for sale ” lottery tickets, upon a statute prohibiting each of those acts as a separate offence, was held upon demurrer not to be obnoxious to the objection of duplicity. So where a statute made the “ receiving or aiding in the concealment of stolen goods, knowing the same to have been stolen,” a punishable offence, it was held that an indictment charging the defendant with receiving and aiding in the concealment of such goods was not double, but charged only a single offence. Stevens v. Commonwealth, 6 Met. 241. See also Commonwealth v. Halbert, 12 Met. 446; Commonwealth v. Harney, 10 Met. 422; Commonwealth v. Simpson, 9 Met. 138. Upon this principle it is clear, that the indictment, charging the defendant Brown with administering ergot and using instruments with intent unlawfully to procure miscarriage, and thereby actually procuring it, sets forth only one offence, and therefore is not objectionable on the ground of duplicity.
The ruling of the court, and the instructions given to the jury in reference to this part of the indictment carefully guarded the rights of the defendant, and were more favorable than those to which he was legally entitled. The case was put to the jury solely upon the evidence on the question of the use of instruments ; whereas, in passing upon the issue, it would have been competent for them to have taken into consideration also the evidence tending to show the administering of ergot for the purpose of producing the same general effect and result for which the instruments were used.
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This case was decided in June.
Merrick, J.
This is an indictment under the “ act to punish unlawful attempts to cause abortion.” St. 1845, c. 27. The defendant was found not guilty of the charge alleged against him in the second count. By this acquittal his motion in arrest of judgment and his objections to the rulings of the court upon the questions of law, which arose at the trial in relation to that count, have become wholly unimportant, and therefore neither require nor admit of any further consideration.
During the trial the defendant submitted to the court a motion that the indictment might be quashed because it was insufficient in law; the first count being, as he alleged, obnoxious to the objection that it was double, in various particulars : 1st. In charging him as principal in the commission of the alleged offence by the use of instruments, and also as an accessory thereto, by the administering of ergot. 2d. By charging him with three distinct offences, namely, in procuring abortion, (1.) By the use of instruments; (2.) By the administering of ergot, and (3.) By violence applied by bis hand. And 3d. By charging him with the distinct crimes of manslaughter and of an attempt to procure an abortion. The verdict of the jury being against him, he then moved in arrest of judgment for the same causes. Both of these motions were overruled by the court; to which deter» minations exceptions were seasonably taken.
[429]*429Upon analyzing this count in the indictment, in which the charge against the defendant is set forth in great detail, and with much unnecessary circumlocution, it becomes apparent that there is no substantial foundation for any of these objections. He is not charged at all as an accessory, nor as having committed the crime of manslaughter, nor any other distinct offences. The averments that he provided ergot, and advised, ordered and commanded Stokes and Emerson to administer it to Susan A. Webster, then and there quick and pregnant with child, and by so ordering, commanding and advising, and by the taking and swallowing such ergot into her stomach by the said Webster, he did administer the same to her unlawfully and without lawful justification and with intent to cause and procure her to miscarry and be prematurely delivered of said child, constitute a full and distinct allegation that he committed the offence prohibited by the statute; and thus charge him directly as the principal felon, and not as the accessory of others in the perpetration of the offence set forth in the indictment.
Nor is he charged as having committed the crime of manslaughter. The statute provides that if the woman shall die in consequence of the doing of any of the acts prohibited, which are done to procure and cause her miscarriage, the punishment to be inflicted upon the offender shall, to a certain specified extent, be increased and aggravated. And the averment that the defendant, by the several means mentioned in the indictment, and with the intents and purposes therein set forth, namely, to cause her miscarriage and to procure the premature delivery of her child, did kill the said Webster, is only alleging in another form of words that she died in consequence of the use of the means and instruments, and the administering of the ergot provided, by the defendant. Taken in connection with other parts of the accusation, no sensible construction can be put upon the language used, which does not lead conclusively to this result.
All the averments in reference to the violence upon the person of Webster by the hand of the defendant were evidently [430]*430introduced into the indictment upon the assumption thai; the severance of the umbilical cord, after the child had come forth from the body of the mother, was essential to constitute and complete the miscarriage. If this assumption was correct, then the means employed to make that severance might and should have been set forth as elements or constituent parts of the offence. But otherwise, and as it was, we think, correctly ruled by the court, if the pregnancy ceased when the child was removed from the body of the mother, the averment of violence by the hand of the defendant at that period constituted no part of the description of the acts prohibited by the statute, and was therefore an immaterial and superfluous statement. For this reason they should be, as they were by the presiding judge at the trial, rejected as surplusage. Commonwealth v. Pray, 13 Pick. 359. Commonwealth v. Simpson, 9 Met. 138.
Rejecting the averments of violence by the hand of the defendant upon the person of Webster, the indictment charges that he used instruments and means, and administered ergot maliciously and without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child. This is not, as is supposed in the objection argued in his behalf, an averment or accusation of the commission of distinct offences, but of one offence, in the use of some of the different means prohibited by law. The statute inhibits the use of “ any means whatever ” to procure, without lawful justification, a miscarriage and abortion. Many expedients may be resorted to and employed for this purpose, and several distinct and separate processes and operations may be actually used to accomplish it. It is a well settled principle that when a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offence, those which are actually done in the course and progress of its commission may be coupled in one count. Whart. Crim. Law, § 390 & cases cited. This principle has often been recognized and sanctioned in this court. In the case of Commonwealth v. Eaton, 15 Pick. 273, an indictment charging the defendant with “ selling and offering [431]*431for sale ” lottery tickets, upon a statute prohibiting each of those acts as a separate offence, was held upon demurrer not to be obnoxious to the objection of duplicity. So where a statute made the “ receiving or aiding in the concealment of stolen goods, knowing the same to have been stolen,” a punishable offence, it was held that an indictment charging the defendant with receiving and aiding in the concealment of such goods was not double, but charged only a single offence. Stevens v. Commonwealth, 6 Met. 241. See also Commonwealth v. Halbert, 12 Met. 446; Commonwealth v. Harney, 10 Met. 422; Commonwealth v. Simpson, 9 Met. 138. Upon this principle it is clear, that the indictment, charging the defendant Brown with administering ergot and using instruments with intent unlawfully to procure miscarriage, and thereby actually procuring it, sets forth only one offence, and therefore is not objectionable on the ground of duplicity.
The ruling of the court, and the instructions given to the jury in reference to this part of the indictment carefully guarded the rights of the defendant, and were more favorable than those to which he was legally entitled. The case was put to the jury solely upon the evidence on the question of the use of instruments ; whereas, in passing upon the issue, it would have been competent for them to have taken into consideration also the evidence tending to show the administering of ergot for the purpose of producing the same general effect and result for which the instruments were used.
Besides the objections argued against the sufficiency of the indictment, exceptions were taken by the defendant to several of the rulings, and omissions to rule in conformity to his request at the trial. But none of these exceptions show any inaccuracy in the statement of the law, or afford any reason for disturbing the verdict. The parts of the person upon whom instruments were alleged to have been used for the purpose of procuring an abortion, which had been preserved, were properly allowed to be submitted to the inspection of the jury in connection with the testimony of the physician who made the post mortem examination. This is in conformity to the usual prac[432]*432tice and course of proceeding, which is not of unfrequent occurrence in capital cases, where a homicide is alleged to have been-effected by means of poison. Many instances of this kind have occurred within the knowledge and under the sanction of this court.
The acts and declarations of Stokes and Emerson as confederates with the defendant in the execution of their common design and object must, under the rulings and instructions of the court as they are reported, have been admitted in evidence solely with reference to the allegations in the second count of the indictment, upon which there was a verdict of acquittal. In that view, the question of the admissibility of this evidence would now be immaterial. But upon the broader ground of the regularity of the proceedings and the competency of the evidence, there is really no room for doubt. The conspiracy of the parties was first satisfactorily made to appear to the court; and then the question whether they did confederate in a common design, and whether the acts and declarations of which proof were offered were done and said in pursuance and execution of it, were left to the determination of the jury. Under such restrictions the evidence was undoubtedly competent. 1 Greenl. Ev. § 111.
The instruction prayed for by the defendant, that the jury could not convict if they were satisfied, upon the evidence, that the abortion was procured by him by the use of some one of the means mentioned in the indictment, unless they were able also to determine by which of those means it was produced, was not given in the very terms asked for; but was given in substance, by the direction that the case went to them solely on the question of the use of instruments, and that they were to convict the defendant only upon satisfactory proof that the abortion was produced in that manner and by those instruments. It is never necessary that the court should adopt the exact phraseology of the party desiring specific instructions. It is always held to be sufficient that those given do actually conform, clearly and distinctly, in substance and effect, to the proposition asserted.
The instructions respecting the effect of removing the afterbirth, and of the acts and declarations of the defendant subse[433]*433quent to the abortion, were stated with precision and accuracy, and were accompanied by suitable and appropriate explanations ; and being pertinent to the point in issue, they were rightly given to the jury. Exceptions overruled.