
    The State of Ohio v. Tippie.
    
      Attempt to procure miscarriage — By use of instrument or other means — Administering non-abortive drug as anesthetic — Death of woman results from use of such drug — Party administering same guilty under Section 12412, General Code, when — Evidence admissible to show absence of criminal intent — Error of common pleas court in overruling motion for new trial — Question of weight of evidence — Question of the discharge or remanding of accused by the court of appeals.
    
    1. Whoever, with the intent to procure the miscarriage of a woman by the use of an instrument or other means, administers to her a non-abortive drug as an anesthetic preparatory to the use of such instrument or other means of procuring an abortion, and the woman dies in consequence of the administering of such drug before the use of instruments or other means by such person to procure such miscarriage, and it does not ap-, pear that such contemplated miscarriage is necessary to preserve her life, or that the procuring of such miscarriage was advised by two physicians to be necessary for that purpose, is guilty of a violation of the provisions of Section 12412, General Code.
    2. Under such circumstances every act done and performed in furtherance of such unlawful purpose is an integral part of the whole unlawful transaction; and the fact that death ensues before the .final act in the contemplated crime can be accomplished, is not a defense to an indictment charging a violation of this section.
    3. If it appear that a non-abortive drug is administered to a woman as an anesthetic to enable a duly authorized and practicing physician fully and carefully to examine into the woman’s actual condition for the purpose of determining if it be necessary to produce a miscarriage in order to save her life, and the woman dies from the effect of the drug so administered, and no miscarriage is performed, nor intended to be performed unless the examination disclose that it is necessary to preserve the woman’s life, no offense has been committed within the provisions of Section 12412, General Code.
    4. Evidence tending to show that no secrecy is maintained in the transaction, that a second physician is called in to administer the anesthetic, that while the woman is in a state of anesthesia the attending physician makes an examination for the purpose of determining whether the fetus is alive or dead, and upon such examination does determine that the fetus is still alive and that it is not necessary to procure a miscarriage in order to preserve the woman’s life, and having so determined, makes no use of any instrument or other means to procure a miscarriage, but immediately desists from further efforts in that direction, and directs that the woman be restored to consciousness, is proper evidence to be admitted for the purpose of showing the absence of criminal intent in administering the anesthetic.
    5. The court of appeals found that the common pleas court erred in overruling the motion of the accused for a new trial. One of the grounds of the motion for a new trial is “That the verdict is against the manifest weight of the evidence.” Therefore, this holding of the court of appeals necessarily includes the weight of the evidence and requires an affirmance of that part of the judgment of the court of appeals which reverses the judgment of the court of common pleas.
    6. Where the court of appeals found, also, that the trial court erred in overruling the motion of the accused to direct a verdict of acquittal at the close of the evidence, it was proper, upon such reversal of the judgment, to order the defendant discharged. Where, however, this court finds that the overruling of such motion was not error, but affirms the judgment of reversal for the other reason, the accused must be remanded to the custody of the trial court for further proceedings according to law.
    (No. 14066 —
    Decided October 22, 1913.)
    Error to the Court of Appeals of Franklin county. .
    The accused was indicted and convicted for administering a drug with the intention of procuring an abortion, in violation of Section 12412, General Code.
    He administered chloroform to Mrs. Nettie Engler, near the fifth month of her pregnancy, with her consent’ and at her husband’s request, after three examinations of her condition on three different days, and after she told him she had used upon herself an instrument for the purpose of producing abortion. The conditions indicated to his mind that the fetus was dead.
    His purpose was, first, to produce'a state of anesthesia, so that he might make a more satisfactory examination without pain, to her, by the use of the speculum and curette, and second, if he found that the fetus was dead, to remove it. Whether he intended to do this in order to preserve the health and probably the life of the woman, is not clear by the record. He called to his assistance a neighboring physician, and notified her husband to be present. He introduced the speculum and by means' of the curette opened the mouth of the uterus, without touching or disturbing the fetus; and then discovered that the fetus was not dead.
    He testified that he then decided “to let the woman alone and give her the benefit of the doubt.” He was packing the vagina with loose gauze, when his assistant notified him that her pulse began to be very feeble and her breathing very labored. Thereupon he immediately desisted from further operations and said “I am done,” and he and his assistant proceeded to revive her from the state of anesthesia, but she died from the effects of chloroform before her husband arrived at the house.
    The charge in the indictment is: That J. W. Tippie, * * * did administer to and cause to be taken by one Nettie Engler, she being then and there pregnant with child, a quantity of a certain poisonous drug, to-wit, about one dram of chloro-form, which, was then and there administered to her by him, with the intent then and there to procure a miscarriage of said Nettie Engler; said miscarriage not being then and there necessary to preserve her life, and then and there not having been advised by two physicians to be necessary for said purpose; in consequence of the taking of the said poisonous drug, so administered to her by him at the time and with the intent aforesaid, the said Nettie Engler then and there died.
    At the conclusion of the testimony the accused moved for a directed verdict of acquittal, which was refused. We do not find the motion in the files, but we glean from the transcript and briefs that the grounds were: (!) That the indictment charged an attempt to produce abortion by the use of chloroform, from which death resulted, but that chloroform, being a non-abortive drug, was not used with the intent alleged but to produce anesthesia only, and the intention to use an instrument or other means is not charged; and (2) the intent to remove a dead fetus by any means is not criminal but lawful. The argument is that neither of two essentials of the crime charged was proven, viz., criminal purpose nor criminal act.
    After verdict there was a motion for new trial, one ground of which was that the verdict was against the clear weight of the evidence. This motion was overruled, and judgment was entered on the verdict. The court of appeals reversed the judgment, for error in overruling both motions, and discharged the accused.
    
      
      Mr. E. B. Turner, prosecuting attorney, and Mr. Wilbur King and Mr. John G. Price, assistant prosecuting attorneys, for plaintiff in error.
    
      Mr. F. V. Owen, for defendant in error.
   Wilkin, J.

Section 12412, General Code, reads as follows: “Whoever, with intent to procure the miscarriage of a woman, prescribes or administers to her a medicine, drug or substance, or with like intent, uses an instrument or other means, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof, shall be imprisoned,” etc.

It will be observed that the statute does not now require, as formerly and at common law, that the drug shall have been administered to a woman (1) “pregnant with a quick child,” nor (2) “with intent thereby to destroy such child.” This statute regards not only the life of the child, but also the life of the woman, though she be not with child in fact.

Here were two physicians, but neither their testimony nor other evidence establishes that the removal of the fetus was deemed or advised by them to be necessary to preserve the woman’s life. We have, therefore, two questions: 1. Whether the intent to remove a dead fetus is an intent to procure abortion or miscarriage, when the removal is not proven to be, nor advised by two physicians to be, necessary to preserve the mother’s life; 2. is the administering of chloroform (which-is not an abortive drug) with the intent to produce anesthesia, as a preliminary step to carrying out the intent of removing the fetus, if it be found to be dead, administering a drug with intent to procure miscarriage ?

1. We remark, first, that the evolution of this statute of Ohio seems to show that it was enacted in its present form to cover any case of procuring the premature removal or expulsion of the fetus, living or dead, with other intent than to preserve the mother’s life.

Second, the object of the statute is to prevent any operation, or use of drugs, for the purpose of producing an abortion upon a woman deemed to be pregnant, except to save her life. The reason and policy of the statute is to protect women and unborn babes from dangerous criminal practice, and to discourage secret immorality between the sexes and a vicious and craven custom amongst married pairs who wish to evade the responsibilities and burdens of rearing offspring. If physicians and surgeons may assist wives and mothers who have practiced feticide upon themselves, by giving them relief after the death of the fetus, the policy of the law will be defeated and the abortionist will have an easy way of evading detection and punishment. He will have only to instruct the woman in the first use of an instrument, and then operate upon the fetus under conditions thus produced, which indicate that it is dead, and, upon his own testimony that he believed it was dead, evade criminal liability. Or physicians may operate in pairs; one upon the request of the woman will examine in order to advise her if she is pregnant, or if the embryo be sound, and, as if by chance, give the delicate touch to the membrane; and when inflammation and the purulent discharge ensue, the second will be consulted and find the conditions that will exonerate him from crime, if he complete the operation.

Third, a comparison of the decisions of our own . state, and of other states having similar statutes, shows that the better reason, if not the preponderance of judicial opinion, is averse to such an interpretation of the law, and is in the same trend with the sentiments of the text-writers. Redfield, C. J., gives an admirable exposition of the “reason of the law” on this phase of the subject in State v. Howard, 32 Vt., 380, 399. The court of appeals erred in overruling the common pleas for following this view of the law.

2. The next question is more difficult. We have, first, to deal with a twofold intent. Primarily the intent was to produce anesthesia. This was not criminal. Secondarily there is an inchoate or suspended intent, or a contingent purpose, to produce miscarriage if the condition of the patient would require it. These comprise one intent to one purpose.

The case is not analogous to that of the burglar who breaks and enters to steal, carrying a murderous weapon in his hand and intending to kill if necessary to make his escape. The breaking is with the intent to kill, though primarily the intent is to steal and not to kill unless the killing be necessary to escape: all one unlawful purpose. But here, if the doctor was giving the chloroform with the intent to discover whether it would be necessary to operate on the fetus, for the sake of the mother’s health and life, but without any intent to operate unless the operation would be necessary to preserve her life, then he did not administer the chloroform with an unlawful intent, that is to say, with intent to do an unlawful act, but to do a lawful act if the condition of his patient required the act to be done.

On the other hand, if his purpose were to discover if the fetus was dead, and then to deliver the woman and complete the abortion, even though her life were not in danger, and if that were his fixed purpose when he gave her the chloroform, then the overt act of administering the drug was attended with the guilty intent, and when she died from the effect of the drug his crime was complete.

The accused is a physician in good and regular standing, and he seems to have testified with candor in his own defense. And he is sustained by other credible physicians of high standing and ability, so far as he proceeded in the treatment of the woman. The net result of the professional opinion is that whether it be necessary to remove the fetus to preserve the life of the mother, where the subjective and objective symptoms are as they were in this case, will depend upon a close, intimate and critical knowledge of the patient, which is to be obtained by the sort of examinations which he made. In short, he could not decide in her case whether it was necessary to operate without making the last examination, and it was proper to administer chloroform for the purpose of that examination, though ether would probably have been a safer anesthetic for her.

Now, the accused did not explicitly state that he intended to operate if the fetus were dead, even if that were not necessary to the preservation of the life of the mother. On the other hand the state failed to show, to that degree of certainty which is required in a criminal case, that he intended to cause the miscarriage without regard to the life of the woman. The testimony, on review of the whole case, shows that he did not intend to do anything unless the fetus were dead; and whether, in that event, operation would be necessary would depend on the precise, particular conditions presented to the mind of the skilled practitioner upon a critical examination. Whether, if the fetus had been dead, he would have removed it, though the life of the mother were not in danger, is left to conjecture.

In this state of the proof the court of appeals found that the evidence was not sufficient to overcome the presumption of innocence, and reversed the conviction upon that ground.

We think this judgment of the court of appeals should be, and it is, affirmed. But the order to discharge the prisoner is reversed, because he was not entitled on the record to a directed verdict of acquittal, and he is therefore remanded to the trial court for further proceedings according to law.

Judgment, as modified, affirmed.

Johnson, Donahue and Wanamaker, JJ., concur. Nichols, C. J., and Shauck, J., not participating.  