People v. Luckett

MARKS, J.

This is an appeal from a judgment pronounced on defendant, and from an order denying his motion for new trial. Defendant was charged with committing an abortion on a young woman of the age of seventeen years.

Several of defendant’s specifications of error may be consolidated and considered under the contention that the evidence. is insufficient to support the verdict and judgment. In support of this argument he cites medical works wherein it is stated that a miscarriage can only occur after the third month of pregnancy. The evidence shows that the illegal operation was performed by defendant prior to that time.

It has been held that in law there is no difference between an abortion and a miscarriage produced by unlawful means.

(State

v.

Harris,

90 Kan. 807 [136 Pac, 264, 49 L. R. A. (N. S.) 580] ;

People

v.

Heisler,

300 Ill. 98 [132 N. E. 802] ;

[541]

State

v.

Grissom,

35 N. M. 323 [298 Pac. 666]. See, also,

People

v.

Coltrin,

5 Cal. (2d) 649 [55 Pac. (2d) 1161].) We must adopt the legal and not the medical definition here. The crime denounced by section 274 of the Penal Code is that committed by a person who uses instruments or other unlawful agents on a pregnant woman at any time after conception to interrupt its development and expel the product before it has acquired the power of sustaining independent life where such act is not necessary to preserve the life of the woman.

The evidence in the instant case shows beyond question that the young woman involved, when pregnant, went to the office of defendant before the fourth month of her pregnancy and submitted to a curettement performed by him with surgical instruments for the purpose of procuring a miscarriage; that a miscarriage occurred during the operation; that the curettement was not necessary to preserve her life. This is sufficient under the law to sustain the verdict and judgment.