
    (73 Hun, 534.)
    PEOPLE v. VAN ZILE.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    1. Abortion—Evidence.
    On a trial for abortion, the evidence showed that one T., with a young woman, called, by previous arrangement, at the office of defendant, a physician, who examined the woman, and pronounced her pregnant. Afterwards, defendant and T. met at a drug store, where defendant wrote a prescription for an abortive mixture, which was compounded and given to T. About a month after, the woman had a miscarriage. Defendant was called to attend her, and his conversation with her indicated that he remembered the circumstances, but he told another physician who was called in that he did not know what was the matter. After the woman died, he tried to borrow money to pay her funeral expenses, saying that he could settle with her mother in that way, and then he absented himself from the city for several months. Held sufficient to sustain a conviction.
    2. Criminal Law—Opening by District Attorney.
    On a trial for abortion, it is not error for the court to permit the district attorney to state, on opening the case, that' defendant had been jointly indicted with one T., and to recite what occurred at the trial of T., for whom defendant was a witness.
    8. Abortion—Evidence—Death op Woman.
    On a trial for "abortion, proof of the death of the woman from miscarriage is admissible as part of the history of the case.
    Appeal from court of oyer and terminer, Kings county.
    Benjamin S. Van Zile was convicted of abortion, and appeals.
    Affirmed.
    Argued before BARNARD, P. J„ and DYKMAN and PRATT, JJ.
    James & Thomas H. Troy, for appellant.
    James W. Ridgway, Dist. Atty., and John F. Clark, Asst. Dist. Atty., for the People.
   DYKMAN, J.

The defendant in this prosecution was indicted by the grand jury of Kings county in October, 1891, for the crime of abortion. The indictment contained two counts; one charging the use of instruments for the procurement of an abortion, and one charging the prescription and administration of drugs to procure the same result. The indictment charges the commission of the offense on the 9th day of December, 1889. The defendant was tried at the court of oyer and terminer in Kings county in February, 1893, and the jury rendered a general verdict of guilty.

A careful examination of the testimony leaves no reasonable doubt of the guilt of the defendant. While it is true that the evidence is circumstantial, and leaves the question of guilt to be determined by inferences drawn from established facts, yet the facts proven are not only entirely inconsistent with the innocence of the defendant, but they can be reconciled upon no theory except that of his guilt. The law under which the defendant was indicted and convicted is this:

“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, or of the child with which she is pregnant, either, first, prescribes, supplies, or administers to a woman, 'whether pregnant or not, or advises or causes a woman to take any medicine, drug, or substance; or, second, uses, or causes to be used, any instrument or other means; is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year.” Pen. Code, § 294.

Under this statute the crime is perpetrated either by prescribing, supplying, or administering to a woman, whether pregnant or not, any medicine, drug, or substance, with intent thereby to procure a miscarriage, or advising or causing a woman to take any medicine, drug, or substance, unless the same is necessary to prolong the life of the woman, or the child with which she is pregnant; or, second, using, or causing to be used, any instrument or other means to accomplish the same result. In this case the evidence tended to prove the defendant guilty, under the first part of the statutory inhibition, of prescribing medicine and drugs with intent to procure a miscarriage. It will be sufficient, therefore, for the justification of this conviction, if the evidence was sufficient to prove that the defendant gave the prescription set out in the case for the purpose of causing a miscarriage, because the second count in the indictment contains that charge, and the verdict was general.

An outline of the material facts is this: On the 8th day of November, 1889, Howard S. Terrell went to the office of the defendant, who was a practising physician in the city of Brooklyn. Terrell was accompanied by a young woman named Lillie L. Cook, and the object of his visit was to procure an examination of the young woman by the defendant, to determine whether she was pregnant. The visit had been previously arranged between Terrell and the defendant, except that no time for it had been specified. The defendant made an examination of the girl, pronounced her pregnant, and advised Terrell to marry her. For that examination the defendant charged and received §25. Three days after that, and on the 11th day of November, 1889, the defendant and Terrell met at Mun-son’s drug store, in the city of Brooklyn, and after a conversation in the corner, which was not heard by the clerk, the defendant asked for pen, ink, and paper, and wrote a prescription, which he gave to the drug clerk, and said, “Put it up, and give it to this young man,” (meaning Terrell,) and the clerk did so. The prescription specified several drugs, which were required to be compounded, and made info 20 capsules, 1 of which was to be taken after each meal. ' Such compound was pronounced by a professor of materia medico to be an abortive mixture. On the 19th day of December, 1889, Lillie L. Cook had a miscarriage, and at her request her sister went to the office of the defendant, and left a request for him to call at the house, and he came there about 8 o’clock in the evening. When he reached the room the following conversation ensued, according to^ the testimony of the defendant:

“The girl said, ‘You don’t remember me?’ And I says, ‘No; who are .you?’ And she says, T am the girl that Terrell had at your office.’ And I says, ‘What is your trouble?’ And she said, T am all through my trouble.’ When did it occur?’ And she says, ‘Last night.’ ”

The girl died on the 25th day of December, 1889; and, in the evening before her death, Dr. Topham, the family physician, was called in, at the request of the mother of the girl, and the following conversation ensued between him and the defendant, according to-the testimony of Dr. Topham:

“Q. What was the conversation, please? A. He (Van Zile) told me that he had been called into the case, I think the Thursday previous, and that she had been getting rapidly worse, and was now in a very bad condition. He did not seem to understand what the matter—what the trouble—was. ■Q. Did he say so? A. He said so.”

On the night of the girl’s death the defendant fled from the city,. and remained absent about three months; but before he left he called upon Munson, the druggist, and informed him that the gill had died, and he thought, if Munson would lend him $250, he could pay the funeral expenses, and satisfy the mother, and settle with her in that way.

This general statement is amply sufficient to show that the jury was justified in finding the defendant guilty of making the prescription with intent to produce a miscarriage. In fact, the guilt of the defendant became so evident upon an examination of the record that no doubt remains upon that subject.

It becomes necessary now to examine the legal questions raised by the defendant at the trial, and again upon this appeal.

When the assistant district attorney was about to open the case .for the people, the counsel for the defendant requested the court to direct him to omit from his opening any reference to any former trial of any one in respect to this case. The request was denied, and the counsel for the defendant excepted. Then the assistant ■district attorney proceeded with the opening, and stated that the ■defendant had been jointly indicted with Terrell, and upon the trial ■of the latter the defendant became a witness for him; that the indictment upon which Terrell was tried contained but one count. -charging that the abortion had been committed by means of mechanical appliances, but upon the trial it was disclosed that the defendant had given a prescription which was to aid in producing the abortion, and then it became necessary to reindict the defendant; that now the defendant was charged, in two counts, with having brought about the abortion by means of mechanical appliances, and .also with giving a prescription for the purpose of bringing about the abortion that was successfully brought about upon the person of Lillie M. Cook. Now, it is claimed that such opening was erroneous, and violative of the legal right of the defendant to a fair and impartial trial. It is to be observed, preliminarily, that there is no legal rule for the measurement of an opening, either in a criminal or civil action. It is the legitimate office and purpose of an opening in a criminal action to give the charge against the accused, and the evidence to be presented by the public prosecutor to establish the ■commission of the crime, and its perpetration by the defendant. Its scope and extent must be controlled by the trial judge, in the exercise of a wise discretion, and it would require a plain violation of the rights of a defendant to induce an appellate tribunal to reverse a conviction for an erroneous opening for the prosecution. What is said in an opening has no binding force, and it is designed •only to give a general acquaintance with the case, to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses. The complaint here is against the statement in the opening of any connection between the defendant and Terrell in relation to the abortion. But it was the intention and the right ■of the public prosecutor to establish the complicity of the defendant with Terrell, and therefore he had the right to state it fully; also, it was his intention to read to the jury the testimony of the defendant given voluntarily upon the trial of Terrell, and therefore it was proper, in the opening, to state that Terrell had been previously tried; also, as it was a fact that the defendant had been reindicted, it was proper to state that as a reason why he was now tried for giving the prescription and producing the miscarriage. We therefore fail to detect any error in the opening.

Neither was it erroneous to take proof of the death of the girl from miscarriage. It was a part of the history of the cáse, and may well have had a legitimate bearing upon the effect of the examination of the girl by the defendant. He said in his testimony that he used a sponge, and the effect of such use was in question all through the trial. Even the disclaimer of the assistant district attorney, for which the defendant contends, does not include the use of a sponge. But the disclaimer seems to have been misunderstood. The disclaimer was of any insistence that .the abortion -was produced by a puncture of membranous sack of the womb. A physician was permitted to say that he would look for a miscarriage if- the whole prescription of the defendant was taken at one dose, but that was after he had said the doses prescribed .were too small. We do not think the testimony erroneous. Any testimony respecting the effect of the medicine prescribed by the defendant was relevant.

The exceptions to the charge of the court, and the refusals to-charge, have all received careful examination, and we find no question raised by them, sufficiently serious to require a separate examination. They present no error, and we find none in the record. The trial was full and fair, and the conviction should be affirmed. All concur.  