The sensations of the patient at the time, are also in different cases unlike each other. In some instances nothing unusual is observed, in others a prick or probing, but in most an acute and tearing uterine pain, often followed by syncope or an hysterical attack. Slight but immediate hemorrhage generally occurs, save in professional cases, increased by compelled exercise, prolonged baths or ergot.
The time ensuing before the expulsion of the fœtus is an element not to be lost sight of. In 34 cases reported by Orfila, the minimum observed was 13½ hours, the maximum 6 days; in 36 cases by Tardieu, the minimum was 5 hours, the maximum 11 days. Of these last cases, however, 29 were within 4 days.
It cannot be alleged in excuse that the sex of the child, so fatal in advanced pregnancy, has any influence in producing early abortion. In 293 premature still-births reported by Collins,[117] 146 were male and 147 female, bearing the proportion of 100 to 100. Nor can the plea of Drs. Gordon Smith, Good, Paris, and Copeland, that as a fœtus born before the seventh month has a slender chance of surviving, its murder should be viewed with leniency,[118] be allowed. Such arguments, that the perils and dangers to which the fœtus is naturally subjected should lessen the criminality of attempts at its destruction, are without foundation, and when advanced by physicians are utterly unworthy the profession.
3. The Intent.
We shall hereafter discuss the perpetrators of the crime, and the emergencies which can alone justify the induction of premature labor or obstetric abortion. We shall see that by none save medical men can such necessity ever be known; it is, therefore, apparent that the intent may frequently be judged from the relation of the parties implicated, and the excuses offered by them. It will also often appear from the other circumstances of the case. That the child was likely to be born a bastard, and to be chargeable to the reputed father, would be evidence to that effect; and proof of the clandestine manner in which the drugs were procured or administered would tend the same way.[119]
On the part of the mother, bastardy also, the having denied the existence of pregnancy, concealed its expelled product, expressed an intention or desire to abort, made a known application for this purpose, visited a notorious abortionist, taken alleged specifics, or given similar advice to a friend, are all presumptive evidence; as are also the having neglected to send for aid when needed, or refused to take precautions or remedies when prescribed. In like manner, evidence of criminal intent would seem apparent, if drugs generally supposed abortive had been advised or given to a pregnant woman, or violence of any kind usually productive of the effect in question, even to tooth-drawing, had been hastily or unnecessarily used.
Here, as in many other cases where no malice is expressed or openly indicated, the law will imply it; if, for instance, a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.[120] Malice is not confined in its legal definition to ill-will toward one or more individual persons, but is intended to denote an action flowing from any wicked or corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief; and, therefore, it is implied from any deliberate or cruel act against another.[121] The rule is, that the implication of malice arises in every such case, and all the circumstances of accident, necessity, or infirmity are to be satisfactorily established by the party charged, unless they arise out of the evidence and attending circumstances; if they do not, there is nothing to rebut the natural presumption of malice. This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own act.[122]
The standing in society of the accused, unless notoriously bad, should of course be allowed to weigh but little; the less the likelihood of the crime, the greater, from example and previous education, its guilt.
If violent purging or vomiting have been resorted to without any apparent reason, or to a greater extent than ordinarily prescribed or required; or if leeches have been applied to the thighs, to the number of an hundred or more, as instanced by Tardieu, or the like, there is certainly ground for strong suspicion. And here it is that the criminal liability of careless or ignorant physicians becomes evident. In cases such as we have referred to, it would be very difficult for a successful defence to be offered, providing the pregnancy had been suspected by those not implicated, were the statutes on abortion properly drawn and enforced.
It has been ruled, and very justly, that attempts at the crime, though unsuccessful; or effective, yet the ovum retained as mole, hydatids, skeleton, mummy, or putrilage; and whether the woman be pregnant or not, and if pregnant, whether the child be alive, dead, or, abnormally developed or degenerated, should be amenable as though fully consummated.[123] We have seen the frequent difficulty in proving fœtal life; the attempt at its destruction shows the belief in its existence, and the intent. The proofs will here of course be of a different nature. The signs of delivery will be absent, and all evidence from the product of conception, unless the mother’s death ensue; in which event, as in the other fatal cases we have considered, and on the principle just laid down, procedure might be had on the charge either of abortion or homicide; but it must not be forgotten, as we early pointed out, that immediate death from the shock may occur, and no lesion of any kind be found. The patient or parties interested are proved by the attempt to have supposed pregnancy existing, and to have behaved as though this were the fact.