Smith, C. J.,
delivered the opinion of the court.
The appellant was tried and convicted on an indictment charging him, with manslaughter.
The indictment was in the language of section 1431, Code of 1906, Hemingway’s Code, section 1187, and alleges simply that the appellant did feloniously kill and slay the deceased,” describing her by name.
The death of the deceased was caused by a surgical operation performed on her for the purpose of producing an abortion. The jury were warranted in believing from the evidence that the operation was peformed by the appellant, a physician and surgeon, with the deceased’s consent for the purpose of relieving her of a fcetue which had not become quick. No necessity for relieving her of the foetus was shown or claimed.
The appellant’s assignments of error are to the effect that the court erred:
First, in refusing to instruct the jury to find the appellant not guilty;
Second, in not holding that the indictment was fatally defective for the reason that it was not framed in accordance with the rules of the common law;
[414]*414Third, in admitting certain testimony offered by the state; and,
Fourth, in .permitting the district attorney to make certain statements to the jury in connection with the testimony of the witness Broomfield.
First. The grounds on which the appellant rests, his right to a peremptory instruction, are, first, that the evidence does not warrant the finding that the operation which resulted in the death of the deceased was performed by him;/and, second, that no crime is committed by producing an abortion upon a woman with her consent before the foetus has become quick, though her death results therefrom. ' .
The first of these contentions is wholly without merit.
The appellant’s convictions. must, of course, rest either upon a statute of this state, or upon the common law, and the contention- of the appellant is that it can rest only bn either section 1232, Code of 1906, Hemingway’s Code, section 962, or section 1233, Code of 1906, Hemingway’s Code, section 963, which provide that “the killing of a human being without malice, by an act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of” any misdemeanor or certain felonies, is manslaughter, and that it does not come within the terms of either for the reason that producing an abortion Avith the woman’s consent before the foetus has become quick is not a crime either at common laAV or under any statute of this state. It is true that the production of such an abortion is not prohibited by any statute of this state and the authorities are in conflict as to whether or not it is a crime at common lawq but the appellant’s guilt does not depend on either) of these statutes, nor upon the criminality of such an operation, for under all of the authorities if an abortion results in the death of the woman it is, at common lawq either murder or manslaughter without reference to the state of the foetus or the criminality of the abortion itself, for the reason that producing an abortion is a deliberate act, dangerous to [415]*415life and involving great bodily harm. 2 Whithaus & Berkner, Medical Jurisprudence, 387; Elwell’s Malpractice & Med. Ev. 244; Wharton on Homicide (3d Ed.), section 378; 2 Cooley’s Blackstone, 1366; 1 Hale’s P. C. 429; 1 East’s P. C. 230; 1 Russell on Crime (9th Ed.), 740; Regina v. Gaylor, 1 D. & B. Crown Cases, 288; State v. Harris, 90 Kan. 807, 136 Pac. 264, 49 L. R. A. (N. S.) 580; Peoples v. Commonwealth, 87 Ky. 487, 9 S. W. 509, 810; Commonwealth v. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776; People v. Sessions, 58 Mich. 594, 26 N. W. 291.
If the act by which an abortion resulting in the death of the woman is produced is eminently dangerous to, and evinces a depraved heart regardless of human life, the crime committed will be murder under the provisions of section 1227, Code of 1906, Hemingway’s Code, section 957; but if it does not evince a depraved heart regardless of human life, the crime committed will be manslaughter under the provisions of section 1244, Code of 1906, Hemingway’s Code, section 974, Avhicli provides:
“Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of laAv, not provided for in this chapter, shall be manslaughter.”
The crime here under consideration comes witiiin the second of these classes. The case of State v. Proctor, 102 Miss. 792, 59 So. 890, is not here directly in point for it does not appear from the report thereof that the Avoman on Avhom the abortion Avas produced consented thereto.
Second. Section 1431, Code of 1906, Hemingway’s Code, section 1187, provides that — “In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient . . . in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.”
This section covers all indictments for homicide whether statutory or common law, and is not modified by section [416]*4161525, Code of 1906, Hemingway’s Code, section 1287, which provides that — “Every offense not provided for by the statutes of this state shall be indictable as heretofore at common law” — the purpose of this statute being simply to recognize common-law offenses not provided for by statute.
Moreover, the offense here in question is, as hereinbefore stated, provided for by section 1244, Code of 1906, Hemingway’s Code, section 974.
Third. Over the objection of the appellant the court below permitted the state to prove what a deceased witness had sworn to in the presence of the appellant on his preliminary trial, before the committing magistrate on an affidavit charging the appellant with murder. The ground of the objection to this evidence is that the issues on the preliminary trial and on the one here in question are different, for the reason that in the first he was charged with murder, and in the second with manslaughter.. A charge of murder necessarily includes a charge of manslaughter, and on the preliminary hearing the question which the magistrate was called on to determine was AVhetlier the appellant should be held to await the action of the grand jury on either charge. The evidence here objected to therefore was competent.
Fourth. A negro physician who was jointly indicted Avith the appellant for the. killing of the deceased was introduced as a witness for the state. On offering this witness the district attorney made the following statement: “The state here proposes to introduce a hostile and unwilling witness.” An objection made to this statement by the appellant was overruled. The witness was then examined by the district attorney by means of leading questions without objection by the appellant to the form thereof. The answers of the witness were not satisfactory to the examiner, but disclosed neither hostility to1 the state nor unwillingness to testify on the part of the witness. The district attorney then again stated to the court without any appárent necessity for so doing, “The [417]
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Smith, C. J.,
delivered the opinion of the court.
The appellant was tried and convicted on an indictment charging him, with manslaughter.
The indictment was in the language of section 1431, Code of 1906, Hemingway’s Code, section 1187, and alleges simply that the appellant did feloniously kill and slay the deceased,” describing her by name.
The death of the deceased was caused by a surgical operation performed on her for the purpose of producing an abortion. The jury were warranted in believing from the evidence that the operation was peformed by the appellant, a physician and surgeon, with the deceased’s consent for the purpose of relieving her of a fcetue which had not become quick. No necessity for relieving her of the foetus was shown or claimed.
The appellant’s assignments of error are to the effect that the court erred:
First, in refusing to instruct the jury to find the appellant not guilty;
Second, in not holding that the indictment was fatally defective for the reason that it was not framed in accordance with the rules of the common law;
[414]*414Third, in admitting certain testimony offered by the state; and,
Fourth, in .permitting the district attorney to make certain statements to the jury in connection with the testimony of the witness Broomfield.
First. The grounds on which the appellant rests, his right to a peremptory instruction, are, first, that the evidence does not warrant the finding that the operation which resulted in the death of the deceased was performed by him;/and, second, that no crime is committed by producing an abortion upon a woman with her consent before the foetus has become quick, though her death results therefrom. ' .
The first of these contentions is wholly without merit.
The appellant’s convictions. must, of course, rest either upon a statute of this state, or upon the common law, and the contention- of the appellant is that it can rest only bn either section 1232, Code of 1906, Hemingway’s Code, section 962, or section 1233, Code of 1906, Hemingway’s Code, section 963, which provide that “the killing of a human being without malice, by an act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of” any misdemeanor or certain felonies, is manslaughter, and that it does not come within the terms of either for the reason that producing an abortion Avith the woman’s consent before the foetus has become quick is not a crime either at common laAV or under any statute of this state. It is true that the production of such an abortion is not prohibited by any statute of this state and the authorities are in conflict as to whether or not it is a crime at common lawq but the appellant’s guilt does not depend on either) of these statutes, nor upon the criminality of such an operation, for under all of the authorities if an abortion results in the death of the woman it is, at common lawq either murder or manslaughter without reference to the state of the foetus or the criminality of the abortion itself, for the reason that producing an abortion is a deliberate act, dangerous to [415]*415life and involving great bodily harm. 2 Whithaus & Berkner, Medical Jurisprudence, 387; Elwell’s Malpractice & Med. Ev. 244; Wharton on Homicide (3d Ed.), section 378; 2 Cooley’s Blackstone, 1366; 1 Hale’s P. C. 429; 1 East’s P. C. 230; 1 Russell on Crime (9th Ed.), 740; Regina v. Gaylor, 1 D. & B. Crown Cases, 288; State v. Harris, 90 Kan. 807, 136 Pac. 264, 49 L. R. A. (N. S.) 580; Peoples v. Commonwealth, 87 Ky. 487, 9 S. W. 509, 810; Commonwealth v. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776; People v. Sessions, 58 Mich. 594, 26 N. W. 291.
If the act by which an abortion resulting in the death of the woman is produced is eminently dangerous to, and evinces a depraved heart regardless of human life, the crime committed will be murder under the provisions of section 1227, Code of 1906, Hemingway’s Code, section 957; but if it does not evince a depraved heart regardless of human life, the crime committed will be manslaughter under the provisions of section 1244, Code of 1906, Hemingway’s Code, section 974, Avhicli provides:
“Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of laAv, not provided for in this chapter, shall be manslaughter.”
The crime here under consideration comes witiiin the second of these classes. The case of State v. Proctor, 102 Miss. 792, 59 So. 890, is not here directly in point for it does not appear from the report thereof that the Avoman on Avhom the abortion Avas produced consented thereto.
Second. Section 1431, Code of 1906, Hemingway’s Code, section 1187, provides that — “In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient . . . in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.”
This section covers all indictments for homicide whether statutory or common law, and is not modified by section [416]*4161525, Code of 1906, Hemingway’s Code, section 1287, which provides that — “Every offense not provided for by the statutes of this state shall be indictable as heretofore at common law” — the purpose of this statute being simply to recognize common-law offenses not provided for by statute.
Moreover, the offense here in question is, as hereinbefore stated, provided for by section 1244, Code of 1906, Hemingway’s Code, section 974.
Third. Over the objection of the appellant the court below permitted the state to prove what a deceased witness had sworn to in the presence of the appellant on his preliminary trial, before the committing magistrate on an affidavit charging the appellant with murder. The ground of the objection to this evidence is that the issues on the preliminary trial and on the one here in question are different, for the reason that in the first he was charged with murder, and in the second with manslaughter.. A charge of murder necessarily includes a charge of manslaughter, and on the preliminary hearing the question which the magistrate was called on to determine was AVhetlier the appellant should be held to await the action of the grand jury on either charge. The evidence here objected to therefore was competent.
Fourth. A negro physician who was jointly indicted Avith the appellant for the. killing of the deceased was introduced as a witness for the state. On offering this witness the district attorney made the following statement: “The state here proposes to introduce a hostile and unwilling witness.” An objection made to this statement by the appellant was overruled. The witness was then examined by the district attorney by means of leading questions without objection by the appellant to the form thereof. The answers of the witness were not satisfactory to the examiner, but disclosed neither hostility to1 the state nor unwillingness to testify on the part of the witness. The district attorney then again stated to the court without any appárent necessity for so doing, “The [417]*417state is introducing a hostile and unwilling witness,” to which the trial judge replied: “But if you can’t get him to testify anything, we can’t make him testify anything.” An objection made by the appellant to both of these statements was overruled. The district attorney then proceeded with the examination of the witness, and among other questions asked him to “state whether or not it is true that you had a conversation with Dr. Dilworth the morning after (the deceased) was operated on, upon the streets of Aberdeen, a day or two before the post mortem examination, in which you told him that you with Dr. Lee operated upon a young lady from Plattsburg for uterine pregnancy.”
This question ivas objected to by the appellant and the objection ivas sustained. No claim was made by the district attorney that when he introduced the Avitness he expected his testimony to be other than it was.
The contention of the appellant in this connection is that the statements by the trial judge and the district attorney and the question propounded to the witness by the latter were calculated to cause the jury to believe that the witness was present at an operation performed by the appellant on the deceased for the purpose of producing an abortion; and also because the Avitness Avas a negro to inject race prejudice into the case.
No Avitness testified to having seen the appellant perform the operation and he himself denied having performed it, but the verdict of the jury is on the evidence not only clearly right, but had this Avitness not been introduced at all it is hardly probable that the jury Avould have arrived at any other. The errors here complained of therefore, conceding for the sake of the argument that such they are, were harmless.
Affirmed.