
    CRICHTON v. THE PEOPLE.
    June, 1864.
    On an indictment for advising a pregnant woman to procure a miscarriage, it is not material that another person beside the prisoner has had connection with the woman.
    
    An indictment under the statute, (L. 1845, p. 285, c. 260, § 2), making it criminal for a person to advise or procure an abortion, is not bad for the reason that it states “ that heretofore, to wit, at the time and place aforesaid, one A. was a pregnant woman, and that the accused, with the intent to produce miscarriage, did advise and procure of her then and there to take certain drugs,” &c. The whole statement may be understood to relate to the same moment of time, and it sufficiently shows an advice and procurement at the time specified as the time of taking.
    
    
      It seems, that under an averment in an indictment of recommending “ Dr. James Clark’s pills,” evidence of the recommending of “ Dr. Clark’s pills” is not a variance.
    
      George Crichton, the plaintiff in error, was indicted under the statute, L. 1845, p. 285, c. 260, 2; same stat. 3 B. S. § 975, 5 ed., for advising a pregnant woman to procure a miscarriage.
    The first count in the indictment alleged as follows: That George Crichton “ heretofore, to wit, on June 22, 1861, with force of arms, &c., at the town of Oswegatchie, in the said county of St. Lawrence, and on divers other days and 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 cDr. James Clark’s female pills,’ which, &c., '. . . with the intent of procuring the miscarriage of her, the said Elizabeth-Dixon/ she then and there being a pregnant woman.”
    The second count alleged as follows : “ 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 advice and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances.or pills, to the jurors aforesaid unknown,” &c.
    At the trial, the defense moved to strike out the second count, as not alleging the time dr place of committing the offense. The motion was denied and exception taken.
    The prosecution proved that the prisoner had induced one Elizabeth Dixon to take some of Dr. Clark’s female pills with intent to procure an abortion; the witness designating them as Dr. Clark’s, not as Dr. James Clark’s, as designated in the indictment. A drug clerk testified that the prisoner bought some of Sir James Clark’s female pills, on the day on which the offense was charged to have been committed.
    At the close of the case for the prosecution, the defense moved for the prisoner’s discharge on the grounds that there was no evidence on which the jury could convict him of the offense charged in the first count; and that the second count was defective, for not averring time or place.
    The motion was denied, and exception taken.
    The defense then called one Lytle, to show that he had had sexual intercourse with Elizabeth Dixon. The court excluded the evidence and the defense excepted.
    The prisoner was convicted, and brought a writ of error on a bill of exceptions.
    
      The supreme court, at general term, held that, conceding the second count to be defective, the verdict, being general, could be upheld, since the evidence could properly apply to the first count; and that although the designation of the medicine, even when under a videlicet, was material, there was no substantial variance in the proof of the use of the medicine alleged. The j udgment was accordingly affirmed, whereupon this writ of error was brought.
    
      Myers & Magone, for plaintiff in error;
    Cited People v. Wiley, 3 Hill, 213; Coles v. Marquand, 2 Id. 447; People v. Lohman, 2 Barb. 221.
    
      B. H. Vary, for the People, defendants in error.
    
      
       Compare Dunn v. People, 29 N. Y. 523, where it was held that, on such an indictment, it is a material fact, as showing motive, that the defendant was the father of the child with whom the woman was pregnant. In such a prosecution the law does not regard the woman as an accomplice, — within the rule calling for corroboration of the testimony of an accomplice, — but rather as the victim of the crime.
      See amendments in the statute, 2 L. 1869, p. 1503, c. 631; 1 1.1872, p. 509, c. 181.
    
    
      
       Compare Elkin v. People, 28 N. Y. 177. In that case, Jacob Elkin, the plaintiff, in error, wasffndicted in the New York general sessions, with Samuel Elkin, for a conspiracy falsely to procure Jacob Laube to be arrested and indicted for larceny. The allegation of the indictment (which is not given in the report in 28 N. Y.) was, that they “ falsely, unlawfully, wickedly and maliciously, intending, contriving, and devising one Jacob Laube then and there unjustly to deprive of his good name and character, on,” &c., at, &c., with, &c., "did unlawfully and maliciously conspire, combine, and confederate together amongst themselves and with each other, to procure him, &c., then and there to be arrested, for the offense of larceny, well knowing that he was not guilty of said offense; and did then and there in pursuance of said conspiracy, combination, and confederacy, cause and procure one Josephene Westendorff to appear before Hon. Barnabas W. Osborne, then and there a police justice in said city, and complain of him, the said, &c., for larceny, and falsely swear that he, &c., had stolen,” &c., &c.
    
   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 the intent to cause and produce her miscarriage, did advise and procure her, then and there, to take, &c. 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 certainty 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. People, 8 Wend. 203, 211; People v. Gilkinson, 4 Park. Cr. 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 Ciarle’s female pills, and the evidence was that he bought a bottle of Dr. Clark’s female ¡nils, and told her to take them, &c.

There cm he no doubt if the nature of the medicines had not been stated under a videlicet the count 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 is necessary to make out the offense; I think the remaining may be rejected as surplus-age. Various cases to this effect may found in 2 Whart. Cr. L. 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. Ciarle’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 the 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. L. 1845, c. 2G0, § 2.

[The judge here recited the two counts above given in full.]

The criticism of the defendant’s counsel upon this [second] count, I think, has nothing of substance of 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,” &c., 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, if 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 arc 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 Oswegatchie, June 22,18G1), George Crichton, did advise and procure her, the said Elizabeth Dizon, then arid there to take,” &c. Unless the time and place first mentioned in the count refer to the advising and procuring, they do not refer to anything.

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 concurred in affirming the judgment.

Judgment affirmed.  