Commonwealth v. Demain

1 Brightly 441

• Court: Supreme Court of Pennsylvania
• Decided: January 15, 1846
• Status: Published

Opinion

The opinion of the court was delivered by

Sergeant, J.

— We see nothing in any of the points taken by the defendants in demurrer. 1. This exception is only pleadable in abatement, in which the defendant must give a better name. It is not cause of demurrer. 2. The indictment is in proper form, and sufficiently avers that .she (the party injured) was-pregnant and quick with child, which was destroyed and killed, &c. 3. This exception is not true in fact. The indictment contains but seven counts, with the usual conclusions. 4. This exception is not cause of demurrer. ' If the counts are improperly joined, the court may be asked to interfere before trial, and put the commonwealth to its election. 5. The name Ford alone, there being no plea in abatement, is not a nullity; and as to inserting Susannah Shoch as a party, that rests with the prosecution. Two or more may be indicted for conspiracy with others not parties.

*

It is a flagrant crime at common law to attempt to procure the miscarriage or abortion of a woman. And it is sufficient, in the indictment, to charge an intent to procure the miscarriage and abortion of the mother, and the premature birth and destruction of the child, of which she was then pregnant. It is not necessary, in such an indictment, to aver quichness on the part of the mother; it is sufficient to set forth that she was big and pregnant. Mills v. The Commonwealth, 1 Harris, 631. When a female is with child, and a potion is administered to her for the purpose of destroying the child, which produces the death of the mother, it is murder in the second degree; unless there existed in the perpetrator an intent to take away the life of the mother, as well as to destroy the offspring; in which case it would be murder in the first degree. Com. ex rel. Chauncey et al. v. The Keeper of the Prison, 2 Ash. 227. p