
    George Crichton, Plaintiff in Error, v. The People, etc., Defendants in Error.
    The plaintiff in error was indicted under the statute of 1845, making it criminal for a “person to advise or procure any pregnant woman to take any medicine, drug, substance, etc., with the intent thereby to procure the miscarriage of any such woman.” The first count of the indictment charged that the defendant, on, etc., at, etc., did then and there advise and attempt to procure, and did procure, one E. D. to take certain medicines, etc., viz.: certain piHsf known, etc., with intent, etc. The second count charged that “ heretofore, to wit, at the time and place aforesaid, one E. D. was then and there a pregnant woman;” that the accused, “for the purpose and with the intent to cause and produce” her miscarriage, “did advise and procure her,” the said E. D., then, and there to take certain drugs, etc.
    
      Meld, that the second count was not bad for want of a sufficient venue.
    
      .Held, also, that conceding that the second count was defective, that would not be fatal, on a general verdict of guilty, if the first count was good.
    The averment in the first count was that the prisoner advised E. D., to take certain medicines, drugs and substances, to wit, certain pills known as Dr. James Clark's female pills; and the evidence was that he bought a bottle of Dr. Clark’s female pills, and told her to take them, etc. Seld, that the allegation was substantially proven, if it was not to be regarded as surplusage.
    The evidence showing the prisoner to have done everything averred in the first count, excepting that • the pills recommended were Dr. Clark’s pills, instead of Dr. James Clark’s pills; also that the prisoner had purchased Sir James Clark’s pills at the place where he told E. D. he had purchased them ; Seld, also, that if it had been necessary to show that the pills he recommended were Dr. James Clark's pills, the evidence was ample to submit to the jury the question whether it was this particular medicine the prisoner reeom- ■ mended.
    The plaintiff in error was indicted for advising one Elizabeth Dixon to take certain medicines to produce an abortion upon her. The indictment contained two counts. The first count charged that the prisoner, late of Oswegatchie, in the county of St. Lawrence, on the 22d of June, 1861, at the town of Oswegatchie, and at, divers other times- did then and there advise and attempt to procure, and did procure, one Elizabeth Dixon to take certain medicines, drugs and substances (to wit, certain pills, known as Dr. James Clark’s female pills), which the said George Crichton then and there produced for the purpose and with the intent of procuring the miscarriage of her, the said Elizabeth, etc. The second count charged that at the time and place aforesaid one Elizabeth Dixon .was then and there a pregnant woman; that the said Crichton, for the purpose and with the intent to cause and produce the miscarriage of her, the said Elizabeth Dixon, she being such pregnant woman as aforesaid, did advise and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances or pills, etc.
    ■ Upon the trial of the cause the counsel for the accused moved to strike out the second count of the indictment on the ground that the same did not charge an offense, because it did not allege the time when or place where the advice was given, or where the prisoner did procure the said Elizabeth to take the medicines alleged, etc. This motion was denied by the court, and the prisoner’s counsel excepted.
    Upon the trial it appeared by the testimony of Elizabeth Dixon that she was pregnant; - that she told the prisoner of her condition; that he got a bottle of Dr. Clark’s female pills and told her to take them, and she would be all right; that she took some of them without effect; that the prisoner then got a box of Dr. Fenton’s pills, and said if she would take it it would cause her to have no child; that he then got a bottle of other medicine, and told her it was sure cure if taken as directed'. In the course of the trial the counsel for the prisoner asked one Lytle whether he had sexual intercourse with Elizabeth Dixon during the spring of 1861, which was objected to by the district attorney and excluded, to which the counsel for the prisoner excepted. After the evidence was closed the counsel for the prisoner made a motion to discharge the prisoner on the ground that there was no evidence to support the first count of the indictment, and that the second count was defective for the reason- that it did not state the time when or place where the offense was committed, and that it was not charged in the said second count that the offense, if any, was committed within the jurisdiction of the said court. The court denied the motion, and the prisoner’s counsel excepted. The cause was then submitted to the jury, who found a general verdict of guilty. The prisoner moved, in arrest of judgment, for the cause aforesaid. The court ordered and directed that the prisoner’s counsel should have leave to make a case, in order that the said several questions might be passed upon by the Supreme Court, and that judgment in the mean time be suspended. The cause was carried to the Supreme Court, and a new trial was denied at a General Term held in the fourth judicial district, in January, 1864, and the prisoner removed the case into this court by writ of error.
    
      Myers <& Magone, for the plaintiff in error.
    
      B. H. Ya/ry, district attorney, for the people.
   Ingraham, J.

There was no error in excluding the inquiry put to Lytle as to his connection with Elizabeth Dixon. It was immaterial whether any other person had connection with her or not. The offense charged was the advising means to produce an abortion, and would have been the same whether the prisoner or Lytle was the father of the child.

The main question in the case is whether the court erred in refusing to strike out the second count in the indictment, and, if such refusal was erroneous, whether the verdict can be sustained notwithstanding such refusal.

The objection to the second count is that there is no time or place averred at which the offense is charged to have been committed, so as to show that it was within the jurisdiction of the court. This count charges that at a certain time and place the said Elizabeth Dixon was pregnant, and that the defendant^ with intent to cause and produce her miscarriage, did advise and procure her, then and there, • to take, etc. The objection to this count is that the words then and there” should have been inserted prior to the allegation of advice and procurement, and not as to the taking and use of the medicines. ' The ordinary interpretation of this count would be that the advice was given at the time when Elizabeth was averred to be there, and when it.was averred that she was to take the medicine advised and procured to be taken. It was all in the same tense, and related to "the same moment of time. The charge was that she was then pregnant ; that the prisoner advised and procured her, then and there (that is, at the time before mentioned, viz., when she was there pregnant), to take the medicines. All the acts charged relate to the same time, and the application of the rule that certainly to a common intent is sufficient, would be enough to sustain this count.

But, conceding that the second count was defective, that would not be fatal if the first count was good. (People v. Wiley, 3 Hill, 194; Kane v. The People, 8 Wend., 210; The People v. Gilkinson, 4 Parker, 26-29.)

The first count is conceded by the prisoner’s counsel to be good, but he contends that the evidence.could not apply to it. The averment .is that the prisoner advised Elizabeth Dixon to take certain medicines, drugs and substances, to wit, certain pills, known as Dr. James Clark’s female pills, and the evidence was that he bought a bottle of Dr. Clark’s female pills, and told her to take them, etc.

There can be no doubt if the nature of the medicines had not been stated under a videlicet the cost would have been amply sufficient and the evidence would have sustained it. It has been held that whatever is not necessary to constitute the offense may be treated as surplusage.

This is particularly the case where the offense is statutory, and in such a case it is always sufficient to charge the offense in the words of the statute, although more particularity is required in bringing the offense within it, where, as in this case, more words are used than are necessary to make out the offense; I think the remaining may be rejected as surplus-age. Various cases to this effect may be found in 2 Wharton’s Cr. Law, 626.

But I think the allegation was substantially proven, if it was not to be regarded as surplusage. The evidence showed the prisoner to have done everything averred in this count, ' excepting that the pills recommended were Dr. Clark’s pills, instead of Dr. James Clark’s pills, and there was also evidence to show that the prisoner had purchased Sir James ■ Clark’s pills, at the place where he told Elizabeth Dixon he had purchased them. If it had been necessary to show that the pills he recommended were Dr. James Clark’s pills, the evidence was ample to submit to the jury the question whether it was this particular medicine the prisoner recommended, and upon this point their finding is against the prisoner.

There is no ground for interfering with the judgment of the General Term.

The judgment should be affirmed and proceedings remitted to Sessions.

Wright, J.

It is not claimed that the conviction is erroneous, if the second count of the indictment is good. This count it is contended on behalf of the defendant, is bad for want of a sufficient venue. I am not able to see this defect.

The defendant was indicted, under the statute of 1845,' making it criminal for a “ person to advise or procure any pregnant woman to take any medicine, drug, substance or thing whatever, with the intent thereby to procure the miscarriage of any such woman.” (Laws of 1845, chap. 260, § 2.) The first count of the indictment charged that the defendant, on the 22d June, 1861, at the town of Oswegatchie, in the county of St. Lawrence, did then and there advise and attempt to procure, and did procure, one Elizabeth Dixon to take certain medicines, drugs and substances, viz.: certain pills known as “Dr. James Clark’s Female Pills,” with intent, etc. The second count charged “ that heretofore, to wit, at the time and place aforesaid, one Elizabeth Dixon was then and there a pregnant woman; that the said George Crichton, for the purpose and with the intent to cause and produce the miscarriage of her, the said Elizabeth Dixon, she being such pregnant woman as aforesaid, did advise and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances or pills, to the jurors aforesaid unknown.”

The criticism of the defendant’s counsel upon this count, I think, has nothing of substance in it. He concedes that if' the allegation had been that the defendant “ did then and there advise and procure the said Elizabeth Dixon then and there to take,” etc., the count would have been good; but contends that as it stands, the giving of the advice and procuring her to take (the only acts of the defendant constituting the crime charged), are without venue of time or place. If this were the fair construction, it would be fatal; for time and place must be attached to every material fact averred. But it is hypercritical. The time and place of advising and procuring are stated, as will be seen by reading the count, omitting the adjunctive and parenthetic clauses showing the condition of the woman. It would then read: “heretofore, to wit, at the time and place aforesaid (that is, at Oswegatehie, on the 22d June, 1861), George Crichton, did- advise and ¡u'oeure her, the said Elizabeth Dixon, then and there to take,” etc. Unless the time and place first mentioned in the count refers to the advising and procuring, they do not refer to any thing.

Being of opinion that the second count is not defective in the particular suggested, it is unnecessary to pursue the further inquiry whether the defendant was properly convicted on the first, which is conceded to be unobjectionable.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.  