
    The People, Resp’ts, v. John H. Phelps, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Abortion—What constitutes offense of—Advice—Acting on.
    Mere advice to take medicine, where no medicine, drug or substance of any kind is taken, is not abortion under § 294 of the Penal Code.
    Appeal from judgment of court of sessions of St Lawrence county.
    
      V. P. Abbott, for app’lt; C. A. Kellogg, for resp’ts.
   Learned, P. J.

—The defendant was indicted and convicted under § 294 Penal Code; and he appeals from the judgment and conviction.

We pass for the present the first question, viz., as to the sufficiency of the indictment, to consider whether the evidence showed a crime under that section. That section, taking the parts directly applicable, is as follows: “Any person who, with intent thereby to procure the miscarriage of a woman * * * advises a woman to take medicine, drug or substance * * * is guilty of abortion, etc.” We notice that the first part of the subdivision, which speaks of prescribing, supplying or administering, is made applicable, whether the woman is pregnant or not It is a peculiar enactment which thus says that abortion can be committed on. a woman who is not pregnant. That provision is not in the latter part of the first subdivision, under which this case comes, nor in the second subdivision.

The testimony of the woman towards whom the offense is-alleged to have been committed is to the following effect; that about the 15th of June she told defendant that a week or ten days had passed beyond the time of her monthly sickness; that he told her she should better have something done; that she told him what she thought should be done; that he told her that she1 would better see a doctor; that she would better go to Dr. S. first; that she was to go there and see Dr. S., and see if he would not give her something to produce an abortion; that he told her she could get some kind of medicine; and if she used it at the-right time, she could produce an abortion; that he told her the1 time was about the third month.

The witness testified to other conversations, at other times, with defendant similar in character. But the court held that these were admissible only on the probabilities of the former testimony,. and that defendant could not be convicted for any advice given at other times. The case rests, therefore, on the testimony above given, assuming its truth.

It further appeared that the witness never went to Dr. S. There was no evidence that she ever took any medicine, drug or other substance; the child was duly born "at seven months. She testified that defendant was the father; and that he had had connection with her once within six weeks prior to the conversation of June 15 th.

The defendant denied this conversation; and admitted having had connection with her for some months prior to January 5th, but not afterwards. There was a sharp conflict as to the facts, which we need not discuss.

The important question raised in this case is whether the word '“advised” in the statute does or does not imply that the advice must be followed in order to constitute the crime. All the other words in the section in a similar position include some act other than mere speech. Such are “ prescribes, supplies, administers.” “Uses or causes to be used.” And where the word “advises” is used, the connection is, “ advises or causes a woman to take.”

Further, the person who does any of these is declared to be guilty of abortion. Now, abortion is the producing of young before the natural time; though the word must have a qualified meaning in this section, since the crime may be committed, according to the language, in respect to a woman who is not pregnant.

It is true that the word “ advises,” of itself, does not imply that the advice is followed. Advice which is rejected is still advice. But we must judge of the meaning here by the context. Section 295 provides for the punishment of the pregnant woman who takes a medicine or uses an instrument or submits to its use with intent to produce her miscarriage. And § 294 provides for the punishment of the accessory; including even the offense of giving medicine with such intent to one not pregnant. Probably this part of the section was enacted in view of the injurious effect of such medicine on a woman whether pregnant or not. But no injury could be done to a pregnant woman or to her child by advice not acted upon. One who counsels another to commit a crime is now a principal. Penal Code, § 29; People v. Bliven, 112 N. Y., 79; 20 N. Y. State Rep., 486. But where the crime is not committed such a person is not a principal, whatever counsel he may have given.

We have no occasion to consider the subject of attempts to commit a crime. Penal Code, § 34. Because the defendant was not convicted of an attempt to commit abortion. Section 686. He was convicted of having committed abortion. And, therefore, the question is presented whether that crime is committed by advice which is not acted upon.

The legislatures were careful to explain that abortion might be committed on a woman not pregnant It seems to us that if they intended that abortion could also be committed by mere speech, followed by no act, they should have stated this unequivocally. As they have not done this, we are of opinion that the word “ advises” in this section, like the word “causes,” which stands in the same connection, implies that the woman advised acted upon the advice and took the medicine, drug or substance. We are of opinion that mere advice to take medicine, where no medicine, drug or substance of any kind is taken, and where, therefore, no injury has been done to anyone, cannot be the crime of. abortion.

Judgment and conviction reversed; new trial granted.

Landou and Mayham, JJ., concur.  