#### Foster, Plaintiff in error, vs. The State, Defendant in error.

*November 17*

December *11, 1923.*

*Criminal law: Abortion: Homicide: Criminal miscarriage.*

1. One who operated on a woman after six or eight weeks of pregnancy, resulting in premature expulsion of the foetus, should have been prosecuted under sec. 4583, Stats. 1921, which punishes such operations with intent to procure miscarriage as an offense against chastity, morality, and decency, rather than under sec. 4352, which punishes such operations with intent to destroy a child as second-degree manslaughter, since homicide is the killing of a human being, and a two-months embryo is not in law a human being, p. 302.

2. The law in its classifications cannot follow the latest or ultimate classifications of science, but must proceed upon every-day conceptions, especially as to definitions of crimes that are *malum in se.*p. 302.

Error to review a judgment of the municipal court of Racine county: E. R. Burgess, Judge.

*Reversed.*

Plaintiff in error, hereinafter called the defendant, was prosecuted under the provisions of sec. 4352, Stats., and convicted of having feloniously produced the death of the child of one Anna Jung. The evidence showed among other things that Miss Jung was advanced in pregnancy from six to eight weeks; that she consulted the defendant; that he made an examination and pronounced her pregnant, and *299performed a criminal operation upon her resulting in 'a premature expulsion of the foetus. He claimed the evidence fails to show that Miss Jung was pregnant; that there is not sufficient proof of his having performed an operation; and that if guilty at all he should have been prosecuted under the provisions of sec. 4583, Stats., relating to producing a miscarriage. To test the correctness of his claims he sued out a writ of error.

For the plaintiff in error there was a brief by *Whaley & Eriks on*of Racine, and oral argument by *Vilas H. Whaley*and *C. E. Erikson.*

For the defendant in error there was a brief by the *Attorney General, I. E. Messer schmidt,*assistant attorney general, and *G. E. Smalley,*assistant district attorney of Racine county, and oral argument by *Mr. Smalley*and *Mr. M esserschmidt.*

Vinje, C. J.

We shall not devote any time to the discussion or recital of the evidence further than to say that it sustains a finding that Miss Jung was pregnant; that the defendant performed a criminal operation upon her by means of which the embryo or foetus was prematurely expelled; and that there were no prejudicial errors in the trial of the case.

The really serious question in the case is whether the defendant was prosecuted under the proper section of the statute. Sec. 4352, under which he was prosecuted, reads as follows:

> “Any person who shall administer to any woman pregnant with a child any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.”

*300■It is found in the chapter relating to “Offenses against Lives and Persons.” The penalty for its violation'is imprisonment in the state prison from 'four to seven years.

Sec. 4583 reads as follows:

> “Any person who shall administer to any pregnant woman, or prescribe for such woman, or advise or procure any such woman to take any medicine, drug or substance or thing whatever, or shall use or employ any instrument or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman shall be punished by imprisonment in the county jail not more than one year nor less than six months or by fine not exceeding five hundred dollars nor less than two hundred and fifty dollars, or by both such fine and imprisonment in the discretion of the court.”

It is found in the chapter entitled “Offenses against Chastity, Morality, and Decency.” It is evident that the legislature did not intend to define the same offense in the two sections. In the latter it defines the offense of an act intended to produce miscarriage or one that does produce miscarriage. *Rodermund v. State,*167 Wis. 577, 168 N. W. 390. In order to commit such an offense there must be a pregnant woman. A normal pregnancy can exist only where there is embryonic life in the womb of the pregnant woman; therefore, in order to commit the offense of producing a miscarriage, there must be a destruction and expulsion of embryonic life. So we have a statute covering the offense of destroying and expelling from the womb embryonic life. This offense is one not -against a person because the law does not recognize a mere embryo as a person or human being, but is an offense against morality because it is against good morals to destroy that which otherwise presumably would develop into a human being. It interferes with the normal functions of nature in the perpetuation of the race.

The offense described in sec. 4352 constitutes manslaughter in the second degree and is by statute included under the denomination of “homicide,” which means the killing *301of a human being. Sec. 4347, Stats.; 13 Ruling Case Law, 734 ; 29 Corp. Jur. 1049. Neither in popular nor in scientific language is the embryo in its early stages called a human being. Popularly it is regarded as such, for some purposes, only after it has become “quick,” which does not occur till four or five months of pregnancy have elapsed. In contemplation of law, says Blackstone, life begins as soon 'as an infant is able to stir in its mother’s womb. 1 B1. Comm, p. 129. To the same effect is the ruling in *State v. Cooper,*22 N. J. Law, 52, 51 Am. Dec. 248. It is obvious that no death of a child can be produced where there is no living child. Sec. 4352 requires the existence of a living child and the causing of its death, or that of the mother, before the offense there defined is committed. If pregnancy has not advanced sufficiently so that there is a living child, that is, a *quick*child, then felonious destruction of the foetus constitutes a criminal miscarriage only. This construction gives full force and effect to each section as defining a distinct separate, offense, is in dccordance with the common conception of the beginning of life, and is sustained by authority. *Evans v. People,*49 N. Y. 86; *Sullivan v. State,*121 Ga. 183, 48 S. E. 949; *Barrow v. State,*121 Ga. 187, 48 S. E. 950; *State v. Cooper, 22*N. J. Law, 52; 29 Corp. Jur. 1050; 1 Russell, Crimes (8th Am. ed.) 672; Wharton, Homicide (3d ed.) p. 591; 21 Cyc. 662.

In *State v. Dickinson,*41 Wis. 299, the court had before it a case where the death of the pregnant mother was produced, and the statement that “it is not material whether the pregnant woman be *quick*with child or not,” was correct under the facts there existing.' Some authorities hold that a woman is *quick*with child from the time of conception but does not carry a *quick*child until it has stirred in the mother’s womb. For a case seeming to hold a contrary view to that held in this case see *State v. Atwood,*54 Oreg. 526, 102 Pac. 295, 104 Pac. 195.

' In a strictly scientific and physiological sense there is life *302in an embryo from the time of conception, and in such sense there is also life in the male and female elements that unite to form the embryo. But law, for obvious reasons, cannot in its classifications follow the latest or ultimate declarations of science. It must for. purposes of practical efficiency proceed upon more every-day and popular conceptions, especially as to definitions of crimes that are *malum in se.*These must be of such a nature that the ordinary normal adult knows it is morally wrong to commit them. That it should be less of an offense to destroy an embryo- in a stage where human life in its common acceptance has not yet begun than to destroy a *quick*child, is a conclusion that commends itself to- most men. The legislature saw fit to enact sec. 4583, a law making it an offense to produce a criminal miscarriage. It also made it .a graver offense by sec. 4352 to produce a criminal abortion resulting in the death of a quick child of of its mother. Both the quick child and the mother are human beings — hence to unlawfully kill either constitutes manslaughter. A two months’ embryo is not a human being in the eye of the law and therefore its destruction constitutes an offense against morality and no-t against lives and persons. Defendant should have been prosecuted under the provisions of sec. 4583. The evidence does not sustain a conviction under sec. 4352.

*By the Court.*— Judgment reversed, and cause remanded for further proceedings according to law.