Thomas A. Weed, Plaintiff in Error, v. The People of the State of New York, Defendants in Error

Thomas A. Weed, Plaintiff in Error, v. The People of the State of New York, Defendants in Error. (Argued February 23, 1874; decided March 24, 1874.) Upon the trial of an indictment for procuring an abortion, causing death, the prosecution after proving the pregnancy of deceased, interviews ' between her and the accused, and that he gave her drugs which she took and in consequence a miscarriage was produced, and her death thereby caused; offered in evidence a circular issued and circulated by the accused, about two years previous to the transaction in question, in substance, advertising that he could be consulted in relation to the production of miscarriages, and advising females who should consult him how the same could be kept secret and they protected from crim- ■ inal punishment. This was received under objection. Held (Foloeb, J., dissenting), no error; that the evidence was proper, as showing knowledge on the part of the accused, of the character of the drugs and their probable effect, and that he administered them "-for the purpose of procuring an abortion. Evidence tending to prove any fact constituting an element of a crime ’ charged in an indictment is competent, although it may tend to prove the prisoner guilty of some other crime. Minutes of the conviction of the prisoner for the crime of perjury were offered, in evidence. They were objected to, because mr certificate that it was a true bill appeared upon the indictment, and :that sentence appeared thereby to have been passed by a court constituted of different persons from those before whom the trial was had. The objections • were overruled. Held, no error; that no objection to the indictment ' having been taken upon the trial thereof; the defect, if any, was cured, and that the different composition of the court was no ground of objection. Plaintiff in error was indicted for procuring an abortion, by administering drugs causing the death of the mother.. The questions above stated were raised upon the trial and were disposed of as there stated. The court charged, among other things, that if the jury found an abortion had been committed upon deceased, or an-attempt had been made causing her death, and that the prisoner was connected with it, they must convict. This was excepted to. It was insisted that the charge was erroneous, as the jury were instructed to convict, notwithstanding they found that the production of the miscarriage was necessary to preserve the life of the deceased, in which case it was not criminal. Held, that the charge was proper as the evidence showed clearly the absence of any necessity, and no evidence whatever was given tending to show such a necessity, and that therefore there was nothing warranting the submission of that question to the jury. E. W. Paige for the plaintiff in error. A. A. Yates for the defendants in error. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur, except Folger, J., dissenting. Judgment affirmed.