
    The People of the State of New York, Appellant, v. John H. Phelps, Respondent.
    To sustain an indictment under the provision of the Penal Code (§ 294),. which provides that “ a person who, with intent thereby to procure the.miscarriage of a woman, unless the same is necessary to preserve the life of the woman, * * * advises or causes a woman to take - any medicine, drug or substance, * * * is guilty of abortion,” etc., it is. not sufficient to show merely that advice was given by the accused; it must appear that the advice was acted upon.
    (Argued April 29, 1892;
    decided May 6, 1892.)
    Appeal from order of the General Term of the Supreme-Court in the third judicial department, made April 4, 1892,. which reversed a judgment of the St. Lawrence County Court of Sessions convicting the defendant of the crime of abortion. The facts, so far as material, are stated in the opinion.
    
      Charles A. Kellogg for appellant.
    The allowing of a prisoner to withdraw a plea of not guilty and to demur to an indictment is discretionary with the court, as the demurrer-must be introduced when the prisoner is arraigned, or at such times as may be allowed by the court.- (Code Crim. Pro. §§ 273, 322; People v. Conroy, 97 N. Y. 62.) This indict-'merit must be judged, as to its sufficiency, by the rules contained in the Criminal Code, irrespective of any that existed before the enactment of it. (Code Crim. Pro. §§ 275, 284; People v. Fleming, 27 N. Y. 329 ; Jefferson v. People, 101 id. 19; People v. Weldon, 111 id. 574; Bradford v. People, 20 Hun, 309.) The section of the Penal Code under which this indictment was framed and a conviction had, is a practical re-enactment of the Revised Statutes as they have stood for years, with but some additions which, by the passage of time, were found necessary to reach the crime intended to be punished. (Penal Code, §§ 294, 318 ; 2 R. S. 779, § 20; Laws of 1872, chap. 181, § 3; Laws of 1880, chap. 283; Dunn v. People, 29 N. Y. 523; People v. Vedder, 98 id. 630.) The General Term,.in its decision of this case, reversed the conviction upon the ground that the legislature, when it used the language “advises or causes a woman to take a drug,medicine or substance,” intended that there should be no crime unless the advice was acted upon. This the appellant claims is contrary to the ordinary force and effect of the language, and contrary to a fair interpretation of the statute. (Penal Code, §§ 294, 318.) Evidence of conversations which preceded or led up to the seduction, and to conversations about the witness Sarah ETicholson going to other doctors than Seymour, which last conversations were a part or continuation of the ones wherein the advice, to go to Seymour were given, and the evidence of Dr. Alexander was. proper. (Dunn v. People, 29 N. Y. 526; Benedict v. Driggs, 34 Hun, 95; F. N. Bank v. Wood, 71 N. Y. 412; Halsey v. Black, 28 id. 445.)
    
      V. P. Abbott for respondent.
    The indictment is defective, and the motion to quash the same and discharge the prisoner •should have been granted. (Code Crim. Pro. § 294; 1 Bishop on Crim. Pro. [3d ed.] 521; Phelps v. Phelps, 72 N. Y. 350; People v. Dumar, 11 N. Y. S. R. 24.) There was no offense proved under the indictment. (Holmes v. Curley, 31 N. Y. 290 ; People ex rel. v. Lacomb, 99 id. 49 ; Sherwood v. People, 100 id. 362.) The offense proved is not the offense under the indictment, and under-section 294 of the Penal Code. (Penal Code, § 318.)
   Gray, J.

The defendant was accused in the indictment of the crime of abortion, alleged to have been committed by advising Sarah Nicholson to take a medicine, drug, or substance and to use means to procure such miscarriage. He was thereupon tried, convicted and señtenced. The General Term reversed the judgment of conviction on the ground, in substance, that under section 294 of the Penal Code, the provisions of which were deemed to have been violated by the defendant, the crime of abortion is not made out by proof of mere advice to take medicine. We agree with them in their interpretation of this section. That section provides that “ a person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, * * * advises or causes a woman to take any medicine, drug or substance, * * * is guilty of abortion, and is punishable, etc.” This section is found in the chapter on “Abortion,” and immediately precedes one which subjects the woman, who takes the medicine, drug, or substance, with intent to produce miscarriage, to punishment by imprisonment. In this case the evidence showed that the defendant’s advice-to the woman was given when she was pregnant, and was, in substance, that she should go to a certain physician and get some-medicine to produce an abortion, and that she could produce-the abortion, if used at the right time. This advice was not acted upon, and it did not appear that she ever took anything-at all in the way of medicine or drug. It would be a very strict and literal, if not an extraordinary, construction of this-section to hold that proof of mere suggestion or advice, without evidence of its being acted upon, could convict a man.

The courts are enjoined to construe the provisions of the-Penal Code “ according to the fair import of their terms, to-promote justice and the objects of the law ” (§ 11), and such a conviction would seem to be very opposed to such a command. The object of our penal law is to define the nature of crimes- -and to prescribe their appropriate punishments. While it would he perfectly competent for the legislature to impose a punishment for the mere giving of advice to a woman to take a medicine to procure an abortion, irrespective of its being acted upon, I do not think that we are warranted in saying that that was their intention here. For a man to be “guilty of abortion,” within the provisions of this chapter, who has advised the woman to take a drug, it is necessarily and logically to be implied that his advice should have been followed by the act. ■Otherwise we should have to draw the apparently absurd conclusion that the legislature intended that abortion could be committed, or caused, by the act of offering advice. The chapter and its provisions, with respect to the man and the woman ¡and to the manufacturer, giver or vendor of medicines, concern facts and the commission of criminal acts. Assuming that the defendant gave the advice of which accused, it does not ¡appear that the woman took it, and, therefore, the fact was wanting to constitute an element of the crime charged. He was accused of the crime of abortion, not of an attempt to commit the crime.

The order of the General Term should be affirmed.

All concur.

Order affirmed.  