The crime may be committed by one who, though prescribing medicine and giving di rections, was not present when it was taken; McCaughey v. State, 156 Ind. 41, 59 N. E. 169 ; or by sending it through the mail; State v. Morthart, 109 Ia. 130, 80 N. W. 301; or if the pregnant woman consented to or urged the operation and the defendant was reluctant to do it; State v. Magnell, 3 Penne will (Del.) 307, 51 Atl. 606; the consent of the woman is no defense; Barrow v. State, 121 Ga. 187, 48 S. E. 950 ; State v. Lodge, 9 Roust. (Del.) 542, 33 Atl. 312; Peoples v. Com., 87 Ky. 487, 9 S. W. 509; even where the indictment charges force and violence and the evidence showed consent ; People v. Abbott, 116 Mich. 263, 74 N. W. 529; nor is it an excuse that prior to the attempt the woman had tried to do it herself, unless such effort by her contributed to her death; State v. Glass, 5 Or. 73.
A child en venire sa mere ["an unborn quick child"] is not a human being within the meaning of a statute providing that whoever kills any human being, with malice aforethought, is guilty of murder; Abrams v. Foshee, 3 Ia. 274, 66 Am. Dec. 77.
The woman who takes the drug or on whom the criminal operation is performed, to procure an abortion, is not an accomplice; Com. v. Boynton, 116 Mass. 343; Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471; State v. Flyer, 39 N. J. L. 598; People v. Mc Gonegal, 136 N. Y. 62, 75, 32 N. E. 616; and
if she had lived would not have been indict able for that offense, her action constituted a different one ; id.; nor is one who attempts to procure it on herself indictable under a statute providing "that any person who shall administer to any pregnant woman, etc."; Hatfield v. Gano, 15 Ia. 177; Smith v. Gaf fard, 31 Ala. 45.
In New York if a person advises a woman to take medicine to procure a miscarriage the crime of abortion is not complete unless the advice is acted on ; People v. Phelps, 133 N. Y. 267, 30 N. E. 1012 ; id., 61 Hun 115, 15 N. Y. Supp. 440; but in New Jersey it is by statute criminal to advise a woman to take a drug for the purpose and it is unnecessary either to allege or prove that the drug was actually taken; State v. Murphy, 27 N. J. L. 112; one furnishing a residence for a woman who procures an abortion is an accessory be fore the fact ; 12 Cox C. C. 463. An offer of proof by physicians that it is the universal custom for unmarried women, illegitimately pregnant, to take any character of drug to procure a miscarriage was properly rejected; Clark v. Com., 111 Ky. 443, 63 S. W. 740. One who induces a woman to take a harm less drug is not guilty of inciting, but the woman who takes it believing that it will bring on an abortion is guilty of an attempt; 63 J. P. 790. See FCETUS: PREGNANCY; MENAGOGUES ; EN VENTRE,,SA MERE.