4. Rape, abortion, bastardy, pederasty, onanism, masochism, and many other matters relating to the sexual organs.
5. Malpractice cases, involving the degree of care and skill usual, and that used in the case under investigation, and involving delicate questions as to the propriety of the treatment adopted, etc.
[186] See also 1 Bishop Crim. Law, sec. 36; Rex v. Romiski, 1 Moody, 19; Reg. v. Ellis, 2 Car. & K., 470.
[187] In such cases as these the patient would have a right of action in the civil courts for damages against the physician or surgeon, because he had taken wilful and wicked advantage of his professional relation to her, to do her a grievous wrong.
[188] The Pennsylvania courts at an early period refused to follow this common-law doctrine, and held that the moment the womb is instinct with life in embryo and the process of gestation has begun the crime may be perpetrated. Mills v. Com., 13 Pa. St., 631.
[189] 1 Bishop Crim. Law, sec. 217, citing Rex v. Williamson, 3 Car. & P., 635.
[190] The same learned and philosophical text-writer (2 Bishop Crim. Law, sec. 664) compares the English and American cases and declares that the difference between them is more apparent than real.
[191] See Rice v. The State, 8 Mo., 561; Fairlee v. People, 11 Ill., 1; Holmes v. State, 23 Ala., 17; Rex v. Spilling, 2 M. & Rob., 107; Ferguson’s Case, 1 Lew., 181; Thomas v. Winchester, 2 Selden, N. Y. Court of App., 397; Com. v. Pierce, 138 Mass., 165, and cases cited; State v. Hahn, 38 Ark., 605; Wharton’s Crim. Law, sec. 1015; Elwell on Malpractice, etc., 238, 239.
[192] 1 Bishop Crim. Law, sec. 558, citing Groenvelt’s case, 1 Lord Raymond, 213; Rex v. Long, 4 C. & P., 398.
[193] See also Kelsey v. Hay, 84 Ind., 189; Small v. Howard, 128 Mass., 131; Gates v. Fleisher, 67 Wis., 286; Smothers v. Hanks, 34 Iowa, 286; Almond v. Nugent, 34 Iowa, 300; Haire v. Reese, 7 Phila. (Pa.), 138; Nelson v. Harrington, 72 Wis., 591.