Redeield, Ch. J.
The important question in the case is, whether the death of the foetus before the attempt of the respondent to procure the abortion, is material as to his guilt. It is undoubtedly one of considerable practical importance. If we regarded the statute as chiefly intended for the protection of the life of the foetus it would incline us very 'strongly to the view taken of the case by the respondent’s counsel. But it is obvious that there are many other important considerations connected with the offence besides the preservation of the life of the child. The life and health of the mother, and the probability of future offspring are all so seriously put at hazard by such a transaction, when produced by mechanical means, that it is not easy to determine precisely which is the more important purpose of the statute, to prevent the injury to the child or to the mother. Then the evil example of such a practice, and the teaching the mothers, or thus attempting to teach them, the facility with which they may escape the perils of child bearing, and the consequent responsibilities, and the impediments to a life of ease and vicious indulgence, are among the most pernicious consequences of such abominable practices, and are no doubt properly to be regarded as fairly coming within the evils to be considered in fixing the construction of the statute and its probable object and purpose. We cannot, therefore, regard the continued life of the foetus as essential to the perpetration of the offence, with reference to its general character.
But undoubtedly the terms of the statute, where they define the offence, are to have a controlling effect in the matter. It would certainly not be allowable, in a case of this highly penal character, to give the statute an operation, with reference to its [400]*400general purpose, beyoqd the clear import of its terms. And if the statute does in terms require the continued life of the foetus at the time of committing the offence, however unimportant it may seem to us, it must bo proved in order to insure a legal conviction.
Í The statute does specifically require that the woman should be ' with child at the time of committing the offence. We could not then adopt the view which was attempted with reference to Lord Ellenborough’s Act, 43 Geo. Ill, chap. 58, that it was not important whether the woman were with child or not; Lawrence, J., in Rex v. Phillips, 3 Camp. 76. But this view seems not to have finally prevailed in regard to the English statute. For in Rex v. Scudder, 3 C. & P. 605, it was held that the woman must be with child in order to insure a conviction under the 43 Geo. III, C. 58. But under the present English statute, 1 Vic. C. 85, sec. 8, and 14 and 15 Vic. C. 100, sec 9, that fact does not seem to be held essential to the conviction. Rex v. Goodchild, 2 Car. & Kir. 293 ; S, C., affirmed by the fifteen judges, id. But | under our statute it is expressly required, to constitute the offence, •that the attempt be to procure the miscarriage of a woman “tlieji. pregnantywith child.’8 This last clause is omitted in the present English statute, which is the only difference between that statute and our own. This is the only fact required to be shown under our statute beyond what is required under the English statute, and we infer that this portion of the statute of this State has been introduced purposely, de industria.
The “ miscarriageis required under the English statute. And if the term “miscarriage” may properly be predicated of a woman not with child, as the English courts held, it may surely be a multo fortiori of one where the foetus is not in life, or has died, or been killed. So that the only new question arising under our statute is, whether it is essential to the pregnancy, or being “ pregnant with'child,” that the child should be still alive. It is not claimed that it is necessary the embryo should have quickened. The general form of expression “ pregnant -with child,” seems to have been used to escape all question of this kind and have it clearly apply to every stage of pregnancy, from the earliest conception ; and if so', we see no reason why it should not extend [401]*401through its entire term, until the actual expulsion of the foetus For it will not be claimed that, strictly speaking, the pregnancy ceases until this event. We think, therefore, that there is no good ground to claim that the mother, after conception, ceases to be pregnant with the child until its actual expulsion from the uterus.
There are, unquestionably, many cases of pregnancy where it becomes matter of certainty that the foetus cannot come to maturity, or to birth, without the destruction of either the mother or the child, and sometimes of both. But we do not apprehend that one who should attempt unlawfully to procure an abortion in such a case, for instance, without being aware of these embarrassments in the case, is to be acquitted of the attempt to commit a crime, because thereafter it might have become necessary for the surgeon, in the course of legitimate practice, to destroy the foetus.
It would seem probable that this general form of expression, u pregnant with child,” was used in order to escape all such refinement about the probable injury, either to mother or child. The statute evidently intends to discriminate between the lawful operation of the medical man, in the due course of his legitimate practice in such cases, when it becomes imminently perilous to delay longer to interfere with the due processes of natural growth, and that voluntary interference in such matters which is prompted by no such motive, but originates in a reckless disregard and defiance of the laws of nature, in order to procure an abnormal exemption from those natural results flowing from illicit or unbecoming indulgence, which the law therefore reprobates.
We think, therefore, that it cannot, with plausibility even, be maintained that the continued life of the foetus is indispensable to the commission of the offence. Most of the vicious purpose and motive for its perpetration, in the majority of cases, still remains; all indeed, or nearly all, to which we have before alluded, if we except the chance of the birth and maturity of a responsible and useful human being, which must indeed be recognized as a very important consideration, although attended with many contingencies and uncertainties, and by no means; in itself, so important as many other consequences directly and incidentally connected with such unlawful and degrading practices.
[402]*402There is, indeed, a certain degree of plausibility in the argument attempted to be deduced from the literal import of the term “miscarriage.” The compound nature of the word seems to imply a departure from the natural course of gestation, and the consequent destruction of the foetus. But the word has not received any such construction in the English courts. It is not so understood, either legally, or medically, or popularly. We cannot, therefore, suppose it was intended by the framers of this statute to be so received. Medically, this term is strictly applied to the expulsion of the embryo during the first six weeks after conception. Legally and popularly, I apprehend, this term applies to the expulsion of the foetus at any time during the period of gestation. And although, in the majority of instances, it occurs in consequence of the destruction of the life of the foetus,
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Redeield, Ch. J.
The important question in the case is, whether the death of the foetus before the attempt of the respondent to procure the abortion, is material as to his guilt. It is undoubtedly one of considerable practical importance. If we regarded the statute as chiefly intended for the protection of the life of the foetus it would incline us very 'strongly to the view taken of the case by the respondent’s counsel. But it is obvious that there are many other important considerations connected with the offence besides the preservation of the life of the child. The life and health of the mother, and the probability of future offspring are all so seriously put at hazard by such a transaction, when produced by mechanical means, that it is not easy to determine precisely which is the more important purpose of the statute, to prevent the injury to the child or to the mother. Then the evil example of such a practice, and the teaching the mothers, or thus attempting to teach them, the facility with which they may escape the perils of child bearing, and the consequent responsibilities, and the impediments to a life of ease and vicious indulgence, are among the most pernicious consequences of such abominable practices, and are no doubt properly to be regarded as fairly coming within the evils to be considered in fixing the construction of the statute and its probable object and purpose. We cannot, therefore, regard the continued life of the foetus as essential to the perpetration of the offence, with reference to its general character.
But undoubtedly the terms of the statute, where they define the offence, are to have a controlling effect in the matter. It would certainly not be allowable, in a case of this highly penal character, to give the statute an operation, with reference to its [400]*400general purpose, beyoqd the clear import of its terms. And if the statute does in terms require the continued life of the foetus at the time of committing the offence, however unimportant it may seem to us, it must bo proved in order to insure a legal conviction.
Í The statute does specifically require that the woman should be ' with child at the time of committing the offence. We could not then adopt the view which was attempted with reference to Lord Ellenborough’s Act, 43 Geo. Ill, chap. 58, that it was not important whether the woman were with child or not; Lawrence, J., in Rex v. Phillips, 3 Camp. 76. But this view seems not to have finally prevailed in regard to the English statute. For in Rex v. Scudder, 3 C. & P. 605, it was held that the woman must be with child in order to insure a conviction under the 43 Geo. III, C. 58. But under the present English statute, 1 Vic. C. 85, sec. 8, and 14 and 15 Vic. C. 100, sec 9, that fact does not seem to be held essential to the conviction. Rex v. Goodchild, 2 Car. & Kir. 293 ; S, C., affirmed by the fifteen judges, id. But | under our statute it is expressly required, to constitute the offence, •that the attempt be to procure the miscarriage of a woman “tlieji. pregnantywith child.’8 This last clause is omitted in the present English statute, which is the only difference between that statute and our own. This is the only fact required to be shown under our statute beyond what is required under the English statute, and we infer that this portion of the statute of this State has been introduced purposely, de industria.
The “ miscarriageis required under the English statute. And if the term “miscarriage” may properly be predicated of a woman not with child, as the English courts held, it may surely be a multo fortiori of one where the foetus is not in life, or has died, or been killed. So that the only new question arising under our statute is, whether it is essential to the pregnancy, or being “ pregnant with'child,” that the child should be still alive. It is not claimed that it is necessary the embryo should have quickened. The general form of expression “ pregnant -with child,” seems to have been used to escape all question of this kind and have it clearly apply to every stage of pregnancy, from the earliest conception ; and if so', we see no reason why it should not extend [401]*401through its entire term, until the actual expulsion of the foetus For it will not be claimed that, strictly speaking, the pregnancy ceases until this event. We think, therefore, that there is no good ground to claim that the mother, after conception, ceases to be pregnant with the child until its actual expulsion from the uterus.
There are, unquestionably, many cases of pregnancy where it becomes matter of certainty that the foetus cannot come to maturity, or to birth, without the destruction of either the mother or the child, and sometimes of both. But we do not apprehend that one who should attempt unlawfully to procure an abortion in such a case, for instance, without being aware of these embarrassments in the case, is to be acquitted of the attempt to commit a crime, because thereafter it might have become necessary for the surgeon, in the course of legitimate practice, to destroy the foetus.
It would seem probable that this general form of expression, u pregnant with child,” was used in order to escape all such refinement about the probable injury, either to mother or child. The statute evidently intends to discriminate between the lawful operation of the medical man, in the due course of his legitimate practice in such cases, when it becomes imminently perilous to delay longer to interfere with the due processes of natural growth, and that voluntary interference in such matters which is prompted by no such motive, but originates in a reckless disregard and defiance of the laws of nature, in order to procure an abnormal exemption from those natural results flowing from illicit or unbecoming indulgence, which the law therefore reprobates.
We think, therefore, that it cannot, with plausibility even, be maintained that the continued life of the foetus is indispensable to the commission of the offence. Most of the vicious purpose and motive for its perpetration, in the majority of cases, still remains; all indeed, or nearly all, to which we have before alluded, if we except the chance of the birth and maturity of a responsible and useful human being, which must indeed be recognized as a very important consideration, although attended with many contingencies and uncertainties, and by no means; in itself, so important as many other consequences directly and incidentally connected with such unlawful and degrading practices.
[402]*402There is, indeed, a certain degree of plausibility in the argument attempted to be deduced from the literal import of the term “miscarriage.” The compound nature of the word seems to imply a departure from the natural course of gestation, and the consequent destruction of the foetus. But the word has not received any such construction in the English courts. It is not so understood, either legally, or medically, or popularly. We cannot, therefore, suppose it was intended by the framers of this statute to be so received. Medically, this term is strictly applied to the expulsion of the embryo during the first six weeks after conception. Legally and popularly, I apprehend, this term applies to the expulsion of the foetus at any time during the period of gestation. And although, in the majority of instances, it occurs in consequence of the destruction of the life of the foetus, where otherwise it would have been born alive, this is not of the essence of the act any more than the life of the child is necessary to a birth. And it cannot be questioned that a child, brought into the world in the course of nature without life, but at the end of the full period of gestation, may properly enough be said to be born, or still born, or born dead, and that this form of expression is strictly accurate, both in legal and popular language.
We cannot, therefore, regard the term “ miscarriage” as necessarily implying the continued life of the foetus. And we do not understand that it is claimed the respondent did not have the full benefit of any presumption or proof in the case, that he might have acted professionally. This view, although put to the jury in form, does not seem, from the general course of the evidence as detailed, to have been a view which was or could have been much insisted upon. It seems highly improbable from the general course of the trial, that if the foetus was in fact dead, it could have been so understood at the time, either by the mother or the respondent. We can scarcely suppose the respondent so utterly ignorant upon the subject as not to have understood that if such was the fact the expulsion must inevitably occur very shortly, in the due course of nature.
The case, upon the most favorable view for the respondent, was one where the respondent believed it to be necessary to use mechanical means to procure a miscarriage, and therefore did use [403]*403them with that view, and in a way calculated to destroy the foetus and thereby did attempt to procure a miscarriage at an earlier period than it would otherwise have occurred, the foetus being at the time dead, without his knowledge or suspicion. And upon this latter fact being subsequently discovered, the respondent asks for an acquittal upon the ground that he seriously contemplated the commission of the offence, and attempted it, but that it was in fact impossible at the time, the woman not being with child, because the child was dead. We cannot adopt this view of the case. We think the mother is with child, whether the child be dead or alive, until the actual miscarriage by the expulsion of the foetus. We are aware that some of the text writers upon medical jurisprudence speak of the “procuring a miscarriage” as the premature destruction of the foetus. This being the mode by which a miscarriage is produced, it may, by a figure of speech, be put for the thing itself in a loose mode of speech. But in careful language we always discriminate between the cause and the consequence. The miscarriage itself is nothing more than the premature expulsion of the foetus, and so the text writers generally speak of it, unless under a figure. The death of the foetus is no more the actual miscarriage than the maturity of the child is the actual birth. Either consequence must follow, and is therefore not identical with its corresponding antecedent.
In regard to the exceptions taken at the course of the trial, we shall but briefly allude to the grounds upon which we think they should now be overruled. The most important consideration to be borne in mind in revising so extended and complicated a trial, it that it should not be set aside unless upon grounds reasonably satisfactory, since, in a court of error, all fair presumptions are to be made in favor of the judgment below.
I. The extent to which the testimony of Olivia Ashe was required to be corroborated, is all that could reasonably be demanded. The corroboration must be upon points where the testimony was material to the conviction, and to such an extent, as upon the whole case to leave it satisfactory to the minds of the jury, to the same extent as would be affected by the testimony of a credible witness. We think the charge must have been so understood, and that the proof detailed did tend to show such corrobora[404]*404tion. We do not think the court is required to be more specific ; 1 Greenleaf’s Ev. sec. 381.
II. The declarations of Olive Ashe, as to the purpose of the journey in going to the respondent’s, were properly admitted as part of the res gesta. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act.
III. The declarations of Olive Ashe, offered as dying declarations, were properly rejected, and as they were only admissible in regard to the count for manslaughter, where there was an acquittal, the question has now become immaterial, except in the event of a new trial; Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. sec. 156. So, too, the judge having decided they were not so made as to be admissible as evidence, his decision is concluí sive; 1 Greenl. Ev. sec. 160; King v. Woodstock, 2 Leach Cr. Cases, 563.
IV. The testimony of Margaret Kelly seems too equivocal to be received as evidence, and if it had any possible tendency to show the fact claimed, it certainly was merely conjectural, and not of that obvious character which is required to make circumstantial evidence, and especially that which depends upon transactions of this remote and uncertain character, admissible. The admission of all the facts claimed as inferences from her testimony, may be explained upon grounds entirely consistent with the theory of the prosecution. The blood found in the pail, if it were admitted to have come from the person of the deceased, is no certain indication of an incipient micarriage.
V. The declarations of Olive Ashe, soon after her arrival at the respondent’s, as to her feelings and the state of her health, were admissible to prove these facts, if they became material in the case. The present state of health or feeling is always allowed to be proved ip this way, since it is the only mode in which it can be shown; Greenl. Ev. sec. 102 ; Aveson v. Lord Kinnaird, 6 East 188; Gray v. Young, 4 McCord 38; Gilchrist v. Bale, 8 Watts 355.
But it is not very apparent how the state of Olive Ashe’s health or feelings, at tjjp firne she came to the respondent’s, became [405]*405important in the course the trial took. If the life of the foetus at that time were a question involved, the state of health of the mother would have some bearing on the question. But that question being here ruled unimportant, it seems to deprive the testimony offered in regard to the declarations of Olive Ashe, of all significance. For it would seem from the requests to charge, and what is said in the charge, that the respondent’s counsel did not make the distinct question before the jury, whether the respondent acted professionally in good faith in what he did. And if this question had been made, the only declarations offered which could have had any possible bearing upon it, are that she was 41 very sick and very much fatigued.” The fatigue is sufficiently accounted for by the journey she had just taken, and is not, therefore, any evidence that she was, or claimed to be, in any unnatural state. And the expression, “ was very sick,” does not point to any such definite state of health requiring the species of professional assistance implied in this feature of the defence, as fairly to justify the court in according a new trial upon the ground of the rejection of this evidence. The uncertainty whether the testimony might not have some bearing in the case, would probably have induced me, had I been trying the case, to admit it, as the safer course. But being rejected, we must now be able to see that the respondent has suffered in his defence on that account, or we cannot reverse the judgment. This we do not regard as sufficiently obvious to warrant a new trial. We believe, from all we can learn in regard to the course of the defence, that this portion of the evidence was only relied upon in regard to the life of the foetus, and if admitted could have had no sensible bearing upon any other question.
VI. The foetus found secreted about the buildings, was certainly a most unusual and most significant fact, and one tending very strongly to show the corpus delicti. The discovery could only be accounted for upon the theory that some one had committed an- offence of the character charged in the indictment, in the immediate neighborhood. And the history of criminal jurisprudence shows very clearly that human bones, and other remains of the human body, found secreted about the buildings occupied by the prisoner about the time of an alleged murder, are always [406]*406received to prove the corpus delicti, and also as tending, in some degree, to identify the guilty party. This testimony undoubtedly did tend very considerably to corroborate Olivia in her account of the transaction. And it is only by supposing that some other person did commit a similar offence about the same time and place, or else that the respondent had committed other similar offences then and there, that we can give any satisfactory explanation of these discoveries, without regarding them as most convincing proof, not only of the corpus delicti, but of the guilt of the respondent.
We think, too, that the general rule which the county court laid down to the jury, in regard to the proper weight of circumstantial evidence, was unexceptionable, and that the detail of the charge upon this particular point was sufficiently guarded, and although it is still possible the jury may have misapprehended the charge, and thus have given this portion of the evidence a more controlling effect than was intended, or was proper, we do not feel so assured of this as to justify a new trial. And finally, although I have felt some hesitation in regard to these two last points, they are so unimportant in themselves, in comparison with the other parts of the case, and the general course of the trial was so well guarded, and there being no reliable ground of belief that any departure from the strictest rules of law did occur, I feel content to overrule the exceptions upon all the points. But in doing so, to prevent misconstruction, we may be justified in saying that a more liberal and charitable view in the admission of evidence, and the construction of the respondent’s conduct, when it can be rationally maintained, is generally to be desired in criminal trials. But some cases will occur where such a view is difficult to be supported, and where it is obvious that all efforts at exculpation are but a struggle against the most embarrassing probabilities. In a case of this latter character, a court of error should not award a new trial when it is obvious from the detail of the evidence that it could be of no avail towards an acquittal, and that the trial had been fair, and patient, and satisfactory, and no obvious errors in law had occurred.
Exceptions overruled, and respondent sentenced to the State prison.