When, in consequence of the means used to secure an abortion, the death of the wo man ensues, the offence is criminal homicide, and though the cases are not uniform as to the degree, the preponderance of authority is that the crime is murder; State v. Dickin son, 41 Wis. 309; Com. v. Parker, 9 Mete. (Mass.) 263, 43 Am. Dec. 396; 1 Hale P. C. 430; 1 East P. C. 230 ; People v. Sessions, 58 Mich. 594, 26 N. W. 291; Wilson v. Corn., 60 S. W. 400, 22 Ky. Law Rep. 1251; State v. Moore, 25 Ia. 128, 95 Am. Dec. 776 ; Smith v. State, 33 Me. 48, 54 Am. Dec. 607 ; Dears. & B. C. C. 288; Mood. C. C. 356; Common wealth v. Keeper of Prison, 2 Ashm. (Pa.) 227; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; but the defendant may be prosecuted under the special statute for procuring a miscarriage; id. Where the of fence is held to be murder, it is usually of the second degree, as in State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312, where the de fendant was convicted under an indictment specifically for that degree; so also in State v. Moore, 25 Ia. 128, 95 Am. Dec. 776, where Dillon, C. J., upon a careful examination of the authorities, sustained the indictment and held that the death of the mother was, at common law, murder, and under the Iowa statutes murder in the second degree. Con viction upon an indictment for manslaughter will be sustained; People v. Abbott, 116 Mich. 263, 74 N. W. 529; Yundt v. People, 65 Ill. 372 ; Dears. & B. C. C. 164;_ 7 Cox C. C. 404. The common law rule that homicide in an attempt to commit a felony is murder. and in the attempt to commit a misdemeanor is manslaughter, has been much discussed and was applied in Worthington v. State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 353, 84 Am. St.
Rep. 506, where an attempt to procure an abortion resulting in death was held man slaughter. Under the Pennsylvania act one causing the death of a woman in attempting to procure a miscarriage cannot be indicted for murder; Com. v. Railing, 113 Pa. 37, 4 Atl. 459. In Wisconsin it was held that from murder at common law, the crime was re duced to manslaughter by statute; State v. Dickinson, 41 Wis. 299, 309. A person may be convicted of manslaughter for causing the death of a woman in attempting an abortion. under a statute making it manslaughter to kill another in the performance of an un lawful act ; the statute making the attempt to procure an abortion a misdemeanor does not take the offence out of the provisions of the other act; State v. Power, 24 Wash. 34, 63 Pac. 1112, 63 L. R. A. 902. Homicide in attempting an abortion may be either murder or manslaughter, but if the latter, it 'must be held to be voluntary, and not involuntary ; People v. Com., 87 Ky. 487, 9 S. W. 509. Dr. Wharton suggests that where there was no intent to do the mother serious bodily harm, it is proper to indict separately for the manslaughter and the per petration of the abortion; 1 Cr. L. 390. In
North Carolina it was held a misdemeanor, and that a count for it may be joined with a count for murder ; State v. Slagle, 82 N. C. 653. In New York, under a statute declar ing it manslaughter to administer drugs, etc., to a pregnant woman with intent to destroy the child, an indictment in which the intent was not so alleged, but only to produce a miscarriage, was held not good as an indict ment for manslaughter, but the jury could convict of misdemeanor; Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340.
In East P. C. 230, it is said that if death ensue it is murder, "though the original in tent, had it succeeded, would not have been so but only a great misdemeanor," but the modern English decisions are by no means uniform. In a late edition of a book of great authority the annotator says : "And there appears to be considerable divergence of opinion amongst the judges as to the prop er direction to the jury in these cases. See 33 L. J. Newsp. 546, 615 ;" Archb. Cr. Pl. & Pr. (230 Eng. Ed.) 798. A recent English case held that it the woman died as the re sult of the operation, it was murder, but if the jury were of the opinion that if the pris oner could not as a reasonable man have expected death to result, it was manslaugh ter; 62 J. P. 711. A note in 13 Harv. L. Rev. 51, criticizes a decision, then recent, remark ing that the settled English rule holding that it is murder if death result from an attempt to procure an abortion, was not followed by Mr. Justice Dowling in a case at the Ches ter assizes, March 6, 1899.
Even if the wound or injury were not of itself sufficient to cause death, if it did so result, owing to the condition of the woman, it is to be treated as the cause of her death ; Clark v. Com., 111 Ky. 443, 63 S. W. 740. See an exhaustive note on "Homicide in the Commission of or Attempt to Commit an Abortion"; 63 L. R. A. 902.
If a person, intending to procure abor tion, does an act which causes a child to be born so much earlier than the natural time that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world, such person is guilty of murder; and the mere ex istence of a possibility something might have been done to prevent the death will not render it less murder ; 2 C. & K. 784. Under statutes the offence of abortion is generally made punishable whether the woman be "quick with Child," or no; Smith v. State, 33 Me. 48, 54 Am. Dec. 607 ; People v. Abbott, 116 Mich. 263, 74 N. W. 529; and in an in dictment for causing death in an attempt to procure an abortion it is unnecessary so to allege; People v. Com., 87 Ky. 487, 9 S. W. 509. It is immaterial whether or not the woman was pregnant; Eggart v. State, 40 Fla. 527, 25 South. 144 ; the intent is the gravamen of the offence ; State v. Jones, 4 Pennewill (Del.) 109, 53 AU. 858.