
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    Jan. 1908.
    THE PEOPLE v. MARGARET WEICK.
    (123 App. Div. 328.)
    (1) . Manslaughter—Abortion—Evidence.
    On the trial of an indictment for manslaughter by performing an operation to cause abortion, a hypothetical question may embrace statements of another witness who testified that the instrument used looked like a bougie or catheter with which instruments the witness was familiar and either of which could be used for abortion. It may also include statements based on testimony that the discharge from the deceased looked like membrane, etc.
    (2) . Same—Possession of Instruments by Defendant.
    In such action it is proper to prove that shortly after the alleged operation the defendant was in possession of instruments adapted for abortion and that she tried to hide them or gave an unreasonable explanation of her possession.
    (3) . Same—Trial—Statement by District Attorney Outside of Evi-
    dence.
    Although the district attorney in summing up attempted to make certain statements outside the -evidence, the defendant has not been prejudiced if her counsel’s objection thereto was sustained and the district attorney admonished by the court to confine his remarks to the evidence.
    (4) . Same—Extension of Term and Transfer of Place of Trial.
    Judgment of conviction will not be reversed because the November term was extended into December and the place of trial transferred from the criminal court building to the county court house.
    Appeal by the defendant, Margaret Weiclt, from a judgment of the Supreme Court, rendered on the 24th day of December, 1906, after a trial at the Hew York Trial Term ¡(criminal branch), convicting the defendant of the crime of manslaughter in the first degree.
    
      Eckvard ffymes, for the appellant.
    
      
      Robert S. Johnstone, Deputy Assistant District Attorney, for the respondent.
   Houghton, J.:

The defendant was indicted for manslaughter in the first degree in having caused the death of one Matilda Walsh through performing a criminal operation upon her, and the trial jury found a verdict of guilty as charged.

The record discloses sufficient- evidence to warrant the jury in finding that the decedent was pregnant, and that the defendant performed, by means of an instrument, an unnecessary abortion upon her from the effects of which she died.

The defendant introduced no evidence in her own behalf and she does not press insufficiency of evidence as a ground of reversal ; but she insists that the hypothetical question which the court permitted to be propounded to the People’s expert witness was improper and embraced facts not established by the evidence, and that the People were erroneously permitted to prove that on the day following the alleged operation several “ bougies,” instruments for producing abortion, were found in the defendant’s possession; and that further that the assistant of the district attorney, representing the prosecution, was guilty of imprqper conduct upon the trial.

We think none of these positions are well taken. The principal objection to the hypothetical question is that it embraced a statement that the instrument which the witness saw the defendant withdraw from the vagina of the decedent looked like a bougie or catheter, and that in the bloody discharge from her person there were substances which looked like skin or membrane, and that upon the post-mortem examination there was present in the uterus a substance that looked like placental tissue to the doctors who observed it.

Various witnesses ,had testified before the jury in the language stated in the question. . The-witness , who saw the instrument withdrawn from the person of the deceased could not say positively from the brief view she had of it that it was a bougie or catheter; but she testified being familiar with the instruments, that it looked like one or the other, either of which could be used to produce abortion; and she also testified that in the bloody discharge there was a substance which looked like membrane or skin. This skin was permissible evidence and was testimony as to facts: Testimony that an observed thing looked to the observer like a known object does not prove conclusively that it was in fact that particular thing, but it is some evidence that it was such, and taken in connection with other evidence might wholly satisfy the minds of the jury.

The hypothetical question was, therefore, proper because it accurately stated the facts which had been proved. If the jury found the facts to exist as they were assumed in the question, then they could be guided by the conclusion of the expert, but they were not even then bound by this conclusion.

It was entirely proper to prove that shortly after the alleged performing of the abortion, the defendant was in possession of instruments for that purpose, and that she tried to hide them, or gave an unreasonable explanation of her possession of them. Such evidence is permissible .upon the same principle as possession of burglar’s tools near the scene and about the time of a burglary, which has always been deemed proper evidence upon trial for that crime.

The assistant district attorney in his summing up allowed his zeal to lead him .into attempting to make some statements outside the evidence. These were promptly objected to by the defendant’s counsel, and he was admonished by the court to confine his remarks to comments upon the evidence before th& jury. We are of the opinion that no harm could have resulted to the defendant from what was said. If any prejudice was created in their minds from what took place it would naturally be against the rebuked prosecution, rather than the defendant.

For the purpose of saving to herself whatever point there may have been in the face that the November term was extended into December, and the place of trial transferred from the criminal court buildings to the county court house, the defendant raises the question upon this appeal.

That question was before us in habeas corpus proceedings in People ex rel. Weick v. Warden of City Prison (117 App. Div. 154), and this court decided against the defendant’s contention.

We find no error requiring a reversal of the conviction, and there being sufficient evidence to warrant the jury in finding the defendant guilty, it should be affirmed.

Patterson, P. J., Ingraham, McLaughlin and Clarice, JJ., concurred.

Judgment affirmed.

NOTE ON ABORTION.

On the trial of an indictment for abortion, it is not erroneous to take proof of the death of the girl from miscarriage. People v. Van Zile, 9 N. Y. Crim. 87, 73 Hun. 534.

In such action, any testimony respecting the effect of the medicine prescibed by the defendant is relevant. Id.

ACCOMPLICE.

The person upon whom an abortion is performed is not an accomplice in the commission of that offense as described in Penal Code, $ 294, but is herself guilty of another crime as described in section 295 of that Code. People v. Myers, 5 N. Y. Crim. 120 (Sup. Ct.).

The mere fact that a person went to defendant’s place with the deceased, does not make such person an accomplice, even though she knew deceased was pregnant. People v. McGonegal, 10 N. Y. Crim. Rep. 141.

In order to escape a conviction for abortion by showing that the act complained of was necessary to preserve life, the burden of proof is on the defendant. Id.

A person upon whose body an abortion is.committed, is not an accomplice in the commission of the crime, and does not require corroboration. Such a person is not guilty of the crime of abortion, but is guilty of a separate and distinct offense. People v. Vedder, 3 N. Y. Crim. Rep. 32.

ATTEMPT TO COMMIT.

The intent to commit a crime is not alone sufficient under sec. 34 of the Penal Code to justify a conviction; it must be accompanied by some overt act, or the crime is incomplete. The test is the condition of the actor’s mind and his conduct in the attempted consummation of his design. People v. Conrad, 19 N. Y. Crim. 259; 182 N. Y. 529.

COMPLAINT.

A complaint alleged that defendant became criminally intimate with complainant and on a subsequent date, she informed him that she was pregnant, when he gave her a pill and made her swallow it, telling her that the pill would bring a miscarriage, and further alleged that defendant did with intent to procure the miscarriage of complainant, supply, administer and cause her to take a certain medicine, drug or substance in violation of sub. 1 of sec. 294 of the Penal Code. Held that the complaint complied substantially with all legal requirements. People v. O’Neil, 15 N. Y. Crim. 391; 34 Misc. 285.

DYING DECLARATIONS.

An abandonment of hope of recovery by the victim of a criminal abortion is not established when, not being apprised of her dangerous condition or that she was about to be operated upon, she stated in answer to a question by the coroner that although she believed she was about to die, she hoped God would let her recover—and her dying declarations are not admissible. People v. Brecht, 21 N. Y. Crim. 391; 120 App. Div. 969.

PHYSICIAN’S PRIVILEGE.

Under sec. 834, Code Civil Pro., applies to criminal actions. People v. Murphy, 4 N. Y. Crim. Rep. 95, reversing 3 N. Y. Crim. Rep. 338; and distinguishing Pierson v. People, 79 N. Y. 424. But it was held that it does not apply to criminal prosecutions for causing death of patient, and a physician may state what he learned as to the physical condition of the patient by examination. People v. Brecht, 21 N. Y. Crim. 391; 120 App. 96, chap. 331, Laws 1905, amending said section by providing that the privilege shall not apply where the patient is a child under sixteen years of age and the information acquired indicates that the patient is a victim of a crime, must be construed to apply only to a living patient under sixteen, upon whom a crime is committed, and has no application to a person whose death is the subject of a criminal prosecution. Id.  