Most of the points here involved having already been incidentally
considered, we will not repeat them. The circumstances and history of the
case, the relative correspondence of different testimony, the allegations
of the accused, will all bear directly upon the question at issue.
In trials for abortion, of all others, the medical witness and the
advocate should bear in mind their liability to error; the juror and the
judge the fact that innocent persons are at times wrongly accused, often
by the true criminals themselves.
* * * * *
In defence, it must either be pleaded that the alleged abortion did not
occur, that it was accidental or natural, that it was necessitated, or
that it was induced by another than the individual charged.
The first of these pleas is seldom offered except in the earliest months
of pregnancy, and would be invalid if an attempt at the abortion could
be proved. In default of this, however, where the ovum has been lost,
or has passed unnoticed, the fact that the sanguineous effusion was
hemorrhagic and attended with clots, would, in the absence of any uterine
disease sufficient to account for this, be so far presumptive evidence;
to be corroborated or not by the history of the case. Moles and hydatids
are now generally allowed to be mere transformations of the product of
conception; their premature discharge, therefore, equally an abortion.
In answer to the second plea, the importance of several points must
be borne in mind. It has been well put by Tardieu that it is wrong to
commence, as advised by most authorities on the subject, by enumerating
all the natural and accidental causes liable to have produced the
abortion. On the contrary, the signs and proofs of criminal violence
should first be sought, and these compared with the allegations of
witnesses and the possibility of a natural or accidental origin. The
traces of falls, contusions, and wounds must be found, not believed on
mere allegation; coincidences must be guarded against, equally with
untruth.
We have already laid down rules here available; that the state of the
fœtus often affords proof of the cause of its expulsion, this being slow
and natural, and depending on disease and predisposition, or not; that in
flagrant malpractice, the use of alleged specifics, or of measures likely
to produce direct miscarriage, or otherwise absolutely counter-indicated
by the general health and constitution of the patient, a contradiction
exists to the plea offered, in itself strong presumptive evidence
of criminal intent; and that in certain cases this evidence becomes
positive, as where, for instance, a sponge found or proved to have been
inserted into the os uteri as a dilating tent, is alleged to have been
intended as a mere pessary and placed in the vagina.
If the accused be a physician, presumed as he should be, acquainted
with the great principles of practice, his only plea can be, where the
means used were unjustifiable and proved such, and where the pregnancy
was known to others, that he was ignorant of its existence. Liable as
the profession are at any time to this charge, and easy as it is in
almost every case, especially of instrumental procedure, for us to take
such preliminary measures as would be likely to settle the question of
the existence of pregnancy, or to request the presence of a witness
to our act, it is unjust to ourselves and to each other to omit these
precautions.
But if, on the other hand, the charge be utterly unfounded, it is
probable, as I have already remarked, that contradictions in the
testimony or the alleged facts could always be shown to exist, and the
perjury thus exposed. It would be self-evident, were the accused proved
to have been first consulted after the abortion had terminated, though
not if it had only commenced.