17 § 51 CRIMES Title 17 Note I

CHAPTER 3 ABORTION; CONCEALMENT OF BIRTH Sec. 51. Penalty; attempts. 52. Mother's concealment of death of illegitimate issue. 53. Contraceptives; miscellaneous information for females.

§ 51. Penalty; attempts Whoever administers to any woman pregnant with child, whether such child is quick or not, any medicine, drug or other substance, or uses any instrument or other means, unless the same was done as necessary for the preservation of the mother's life, shall be punished, if done with intent to destroy such child and thereby it was destroyed before birth, by a fine of not more than $1,000 and by imprisonment for not more than 5 years; but if done with intent to procure the miscarriage of such woman, by a fine of not more than $1,000 and by imprisonment for less than one year, and any person consenting and aiding or assisting shall be liable to like punishment. R.S.1954, c. 134, § 9.

Cross References Homicides- Manslaughter, see §§ 2551, 2552 of this Title. Murder, see § 2651 et seq. of this Title.

Notes of Decisions Admissibility against codefendant 14 Verdicts 16 Burden of proof II Witnesses 12 Common law I Words and phrases 3 Defenses 9 Elements of offense 4 Evidence 13, 14 Library references Generally 13 Abortion ~1, 2. Codefendant, admissibiEl.y against C.J.S. Abortion §§ 1 et seq., 13, 44 et 14 seq. Felonies 5 Homicides 7, 8 I. Common law Manslaughter 8 At common law, it was no offense Murder 7 to perform an operation upon a preg­ Indictments and informations 10 nant woman by her consent, for the Legislative intent 2 purpose of procuring an abortion, and Manslaughter 8 thereby succeed in the intention, un­ Misdemeanors 6 less the woman was "quick with Murder 7 child". Smith v. State (1851) 33 Me. Proof generally 15 48. 58 Ch.3 ABORTION 17 § 51 Note 10 2. Legislative intent 7. Homicides-Muder Legislative intent must be derived The using of an:r means, with intent from this section itself, and not from to destroy the chili of which a female foreign statutes or decisions. State is pregnant, and the destroying of the v. Rudman (1927) 126 Me. 177, 136 A. child thereby before its birth, unless 817. done to preserve the life of the moth­ er, constitutes a felony; and if, by the 3. Words and phrases use of such means and with such in­ Under this section, which punishes tent, the death of the mother be oc­ for use of medicine or instruments on casioned, it is murder. Smith v. State pregnant woman, phrase, "unless same (18G1) 33 Me. 48. was done as necessary for preserva­ tion of mother's life," refers to acts 8. -Manslaughter enumerated rather than to subsequent The using of means, with intent to clause requiring intent to destroy child procure the miscarriage of a pregnant or procure miscarriage. State v. Rud­ female, and the procuring of the mis­ man (1927) 126 Me. 177, 136 A. 817. carriage thereby, unless done to ore­ Conjunctive "as", used in this sec­ serve the life of the mother, is a mis­ tion prohibiting abortion, unless done demeanor; and if, by the use of .5uch "as necessary" to preserve mother's means and with such intent, the death life, means "because" or "since". Id. of the mother be occasioned, it is man­ slaughter. Smith v. State (1851) 33 4. Elements of offense Me. 48. Offense of abortion is complete, when overt act is done with intent 9. Defenses to destroy child or procure miscar­ Only exception to criminal respon­ riage, unless for preservation of moth­ sibility for abortion or attempted pro­ er's life. State v. Rudman (1927) 126 curement of miscarriage is necessity 1\le. 177, 136 A. 817. in fact of preserving mother's lifC'. Procuring abortion or miscarriage State v. Rudman (1927) 126 Me. 177, for any reason other than necessity 136 A. 817. of f'aYing mother's life is ahsolutC'ly Good faith of person procuring abor­ prohibited. ld. tion or attempted miscarriage in be­ Procuring an abortion is an offense, licying same to be necessary is no de­ whether with woman's consent or not; fense. Id. and it is not essential that the woman should have been quick with child. 10. Indictments and informations Smith v. State (1851) 33 Me. 48, 54 Under this section, which punishes Am.Dec. G07. for use of medicines or instruments on pregnant woman to procure abortion, 5. Felonies unless necessary for preserving moth­ The using of any means, with in­ er's life, indictment charging use of tent to destroy the child of which a imltrument in violation of statute, "it female is pregnant, and the destroying not being necessary for preservation of the child thereby before its birth, of life" of mother to use said instru­ unless done to preserve the life of the ment, was sufficient to negative excep­ mother, constitutes a felony. Smith tion in statute. State v. Rudman v. State (1851) 33 Me. 48. (1927) 126 Me. 177, 136 A. 817.

6. Misdemeanors Under this section, f<'r destroying The using of means, with intent to an unborn child by the use of an in­ strument, the indictment must allege procure the miscarriage of a pregnant female, and the procuring of the mis­ an "intent to destroy such child." earriage thereby, unless rlone to pre­ Smith v. State (18G1) 33 Me. 48, 54 serve the life of the mother, is a mis­ Am.Dec. 607. demeanor. Smith v. State (1851) ~)3 It is not necessary to ayer that the Me. 48. mother had quickened. ld. 59 17 § 51 CRIMES Title 17 Note II II. Burden of proof 14. -Codefendant, admissibility State has burden of proving preg­ a:gainst nancy beyond reasonable doubt in 'Vhere trial of physician ared 01\(' abortion case. State v. Hudman (1927) at whose house abortion was per­ 126 Me. 177, 136 A. 817. formed was joint, hearsay testimony of another phYSician examining wom­ 12. Witnesses an after attempted abortion, as to An experienced physician, after remark she made that "if she went having made a post mortem exam­ back to man performing operation ination of the body of a female, may, she supposed he would take care of as an expert, offer his opinion wheth­ her", may have been prejudicial er sile had becn pregnant, and as to harm to owner of house, as it was to the cause of her death. State v. phYSician accused of performing op­ Smith (1851) 32 Me. 369. eration. State v. Donnell (1930) 128 Me. 500, 148 A. 747. 13. Evidence-Generally Statements to physician of one's 15. Proof generally bodily ailments, made for purpose of Evidence that accused, for re­ enabling physician to give proper quired fee, procured miscarriage of medical advice and treatment by woman pregnant with child, by use forming an opinion of cause of ail­ of catheter, and that such use was ments, may be testified to by physi­ not necessary to preserve life of cian, not as evidence of actual cause mother, was sufficient to take t]lL'S­ of ailments, but in connection with tion of defendant's guilt to jury. testimony of opinion formed partly State v. Alquist (1943) 140 :Vk 79, upon those statements. State v. Don­ 34 A.2d 21. nell (1930) 128 Me. 500, 148 A. 747. Where the indictment alleges the In prosecution for attempted abor­ act to have been done with a speeiiiC'd tion causing death, it was competent instrument, it is not necessary to for physician examining female aft­ prove that it was done with that par­ er attempted abortion and before ticular instrument, but it is f;uffi­ death, after testifying to condition of cient if the nature of the instrument patient and complaints and symp­ and the kind of death occasiollC'd by toms, to give his opinion that they it were the same. State v. Smith were such as might have been ex­ (1851) 32 Me. 369, 54 Am.Dec. 57R pected from incomplete abortion. Id. 16. Verdicts Testimony by phYSician examining The using of means, with intent to woman upon whom attempted abor­ procure the miscarriage of a preg­ tion was made, and who died from nant female, and the procuring of the incomplete abortion, that patient miscarriage thereby, unless done to made remark that "she supposed if preserve the life of the mother, is a she went back to man who performed misdemeanor; and if by the use of operation that he would take care such means and with such intent, of her", was hearsay and inadmis­ the death of the mother be occa­ sible in prosecution for attempted sioned, it is manslaughter; there­ abortion producing death. Id. fore, if upon such a charge in an in­ Pregnancy may be proved by cir­ dictment, a verdict be rendered of cumstantial evidence. State v. Rud­ murder, it will be reversed for error. man (1927) 126 Me. 177, 136 A. 817. Smith v. State (1851) 33 Me. 48.

§ 52. Mother's concealment of death of illegitimate issue If a woman is willingly delivered in secret of the issue of her body, which would be a bastard if born alive, and conceals the death thereof so that it is not known whether it was born 60 Ch.3 ABORTION 17 §52 dead, or alive and was murdered, she shall be punished by a fine of not more than $100 or by imprisonment for not more than 3 years. She may be charged with such offense and with the murder of such child in the same indictment, and convicted and punished for either, according to the verdict. RS.1954, c. 134, § 10.

Cross References

:Munlc:', ~:,(' § :2GG1 l't seq. of this Title.

Notes of Decisions

Defenses 5 del', except such mother can make Elements of offense 4 proof by one witness at least that Historical I the child whose death was by her so Purpose 2 intended to be concealed was born Words and phrases 3 dead." See, An.Chrs. & Laws, l\lass. Bay, c. 38; State v. Kirby (1869) 57 Me. 30.

Library references 2. Purpose Obstrncting Justice <&:=>1. The purpose of this section is to C.J.S. Obstructing .Justice § 12. prevent infanticide, and to punish it where not prevented. State v. Kir­ I. Historical by (186()) G7 1\le. 30. ~'his section dates bad: to a pro­ vincial statute of 169G, in these words: 3. Words and phrases "Whereas many lewd women that "So that it is not known", as used have been delivered of bastard chil­ in this section, relates to any time, dren, to avoid their shame and to es­ past or present. State v. Kirby cape punishment, do secretly bnry (186()) G7 l\le. 30. or conceal the death of their chil­ dren, and after, if the child be found 4. Elements of offense dead, the said women do allege that While the gist of the offense under the said child was born dead, where­ as it falleth ont sometimes (although this section consists in the conceal­ hardly it is to be proved) that the ment of the death of a child, it is said child or children were murder0d such a concealment as prevents it be­ ing known that the child was born by the said women, thcir lewd moth­ dead, or alive and was murdered. ers, or by their assent or procure­ State v. Kirby (18G()) 57 Me. 30. ment; Be it therefore enacted," &c., "that if any woman be delivered of If the child is proved to have been any issue of her body, male or fe­ born dead, although the mother con­ male, which if it were born alive cealed its birth, she cannot be con­ Should by law be a bastard, and that victed. 1d. she endeavor privately, either by drowning or secret burying thereof, or 5. Defenses any other way, either by herself or the procuring of others, so to conceal Proof that child was born dead en­ the death thereof, that it may not titles mother to acquittal. State v. come to light whether it were born Kirby (186()) 57 Me. 30. alive or not but be concealed, in ev­ rt is immaterial whether proof of ery such case the mother so offending stillborn child is introduced by pros­ shall suffer death as in case of mur· ecution or defense. 1d. 61 17 § 53 CRIMES Title 17

§ 53. Contraceptives; miscellaneous information for females Whoever publishes, sells or distributes by hand or otherwise any circular, pamphlet or book containing recipes or prescrip­ tions for the cure of chronic female complaints or private diseases, or recipes or prescriptions for drops, pills, tinctures or other com­ pound designed to prevent conception or tending to produce miscarriage or abortion shall be punished by a fine of not less than $50 nor more than $100, or by imprisonment for not more than 3 months. R.S.1954, c. 134, § 11. Library references: Abortion

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