The first count of the indictment charged that the prisoner on the 10th day of January 1811, and on divers other days and times between that day and the 20th of March in the year aforesaid, at the parish of St. Mary’s in the county of Monmouth, wilfully, maliciously, unlawfully and feloniously did administer to and cause to be administered to and taken by one Hannah Mary Goldsmith, single woman, divers large quantities, that is to say, 6 ounces of the decoction of a certain shrub called savin, then and there being a noxious and destructive thing, the said H. M. G. on the said 10th day of January in the year aforesaid, and continually from thence until the said 20th day of March in the year aforesaid, at &c. aforesaid, being with child, but not quick with child, to wit, at the respective times of administering such divers large quantities of the decoction of the said shrub called savin as aforesaid, with intent thereby to cause and procure the miscarriage of the said H. M. G., against the form of the statute, &c.
It appeared that the prisoner prepared the medicine which he administered to Miss Goldsmith by pouring boiling water on the leaves of a shrub: and the medical men examined, stated that such a preparation is called an infusion not a decoction,—which is made by boiling the substance in the water.
The prisoner’s counsel insisted that he was entitled to an acquittal on the ground that the medicine was misdescribed.
Lawrence, J. This objection will not hold. The infusion and decoction are ejusdem generis, and the variance is immaterial. The question is, whether the prisoner administered any matter or thing to this woman with intent to procure abortion.
Witnesses were called for the prisoner to prove that the shrub he used was not savin.
The counsel for the prosecution, insisted, that even in that case the prisoner might be found guilty upon the last count of the indictment, which charged that he administered a large quantity “of a certain mixture to the jurors unknown, then and there being a noxious and destructive thing.”
The prisoner’s counsel objected that unless the shrub was savin, there was no evidence that the mixture was “noxious and destructive.”
Lawrence, J. In an indictment on this clause of the statute, it was improper to introduce these words; and although they are introduced, there is no necessity to prove them. It is immaterial whether the shrub was savin or not, or whether or not it was capable of procuring abortion,[[54]] or even whether the woman was actually with child. If the prisoner believed at the time that it would procure abortion, and administered it with that intent, the case is within the statute, and he is guilty of the offence laid to his charge.
The prisoner urged that he had given the young woman an innocent draught for the purpose of amusing her, as she had threatened to destroy herself, unless enabled to conceal her shame; and the Jury returned a verdict of not guilty.
The prisoner had been previously tried on the first section of the statute[[55]] for the capital charge, in administering savin to Miss Goldsmith to procure abortion, she being then quick with child.[[56]] In point of fact, she was in the fourth month of her pregnancy. She swore, however, that she had not felt the child move within her before taking the medicine, and that she was not then quick with child. The medical men in their examinations, differed as to the time when the fœtus may be stated to be quick, and to have a distinct existence; but they all agreed that in common understanding, a woman is not considered to be quick with child till she has herself felt the child alive and quick within her, which happens with different women in different stages of pregnancy, although most usually about the sixteenth or eighteenth week after conception.