{
  "id": 2424738,
  "name": "The People of the State of Illinois, Defendant in Error, vs. Anna M. Heisler, Plaintiff in Error",
  "name_abbreviation": "People v. Heisler",
  "decision_date": "1921-10-22",
  "docket_number": "No. 14014",
  "first_page": "98",
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  "last_updated": "2023-07-14T21:26:06.170820+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Defendant in Error, vs. Anna M. Heisler, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Thompson\ndelivered the opinion of the court:\nPlaintiff in error was convicted in the criminal court of Cook county of the crime of murder by abortion. The indictment was in two counts. The first count charged that Anna M. Heisler on the 29th day of May, 1919, made an assault upon the body of Lena Benes, and unlawfully, feloniously and willfully did force, thrust and insert a certain instrument into the private parts and womb of her, the said Lena Benes, a woman pregnant with child, with intent to produce an abortion and miscarriage, and did cause the abortion and miscarriage of the said Lena Benes, it not being then and there necessary so to do for the preservation of her life, she, the said Anna M. Heisler, well knowing that the use of said instrument would produce such abortion and miscarriage, and that by reason of such abortion and miscarriage the said Lena Benes languished until the 31st day of May, 1919, when she, the said Lena Benes, by reason of said abortion and miscarriage died. The second count charges that the abortion and miscarriage were caused in some way and manner and by some means and device unknown. This writ of error is prosecuted to reverse the judgment of the criminal court committing plaintiff in error to the State penitentiary for a period of twenty-one years, for the reason, among others, that there is no proof in the record that an abortion or miscarriage was produced.\nDr. E. R. LeCount, a physician to the coroner, testified that he made a post-mortem examination of the body of Lena Benes and found all the organs of the body healthy except for changes from blood poisoning. He opened the womb and found a small foetus of about two months\u2019 growth. It was badly decomposed and appeared to have been dead for several days. He found evidence of acute blood poisoning, and it was his opinion that death resulted from this blood poisoning following the attempted abortion.\nSection 3 of the Criminal Code provides: \u201cWhoever by means of any instrument, medicine, drug or other means whatever, causes any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother\u2019s life, shall be imprisoned in the penitentiary not less than one year nor more than ten years; or if the death of the mother results therefrom, the person procuring or causing the abortion or miscarriage shall be guilty of murder.\u201d (2 Barker\u2019s Ill. Stat. 1385.)\nIn medical parlance a distinction is often made between the terms \u201cabortion\u201d and \u201cmiscarriage,\u201d but in law, and as used in our statute, there is no ground for any distinction. The terms are synonymous. Abortion is the expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life. (1 R. C. L. 70; 1 Corpus Juris, 309; 1 Am. & Eng. Ency. of Law,\u20142d ed.\u2014186; Mills v. Commonwealth, 13 Pa. St. 631; State v. Crook, 16 Utah, 212, 51 Pac. 1091; Marmaduke v. People, (Colo.) 101 Pac. 337; Commonwealth v. Smith, 213 Mass. 563, 100 N. E. 1010.) Webster defines abortion as the \u201cact of giving premature birth; specifically, the expulsion of the human foetus prematurely, particularly at any time before it is viable or capable of sustaining life; miscarriage.\u201d The Standard Dictionary defines abortion as \u201cthe act of bringing forth young prematurely; in a loose use, miscarriage. In the human subject, as usually construed in law and medicine, abortion is the expulsion of the product of conception at any period of gestation before the foetus becomes viable.\u201d This same authority defines criminal abortion as \u201cthe act of causing abortion or miscarriage in a pregnant woman, except when necessary to preserve her life,\u201d and defines missed abortion as \u201cthe retention of a foetus in the womb after its death, accompanied by indications of abortion.\u201d Under this definition the evidence in this case shows clearly that the act which the plaintiff in error is charged with committing is missed abortion,\u2014that is, an unsuccessful attempt to bring forth the foetus.\nTo cause a woman to abort or miscarry and to attempt to procure or produce an abortion or miscarriage are separate and distinct offenses. (Clark v. People, 224 Ill. 554.) This conviction of the plaintiff in error for murder by abortion would not be a bar to the prosecution of her for murder by an attempt to produce an abortion. 'She is charged in the indictment with murder by abortion, and the proof shows clearly that no abortion was produced. The variance between the charge and the proof is fatal.\nThe judgment of the criminal court of Cook county is reversed. r , ,\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Thompson"
      }
    ],
    "attorneys": [
      "Q. J. Chott, for plaintiff in error.",
      "Edward J. Brundage, Attorney General, Robert E. Crowe, State\u2019s Attorney, and James B. Searcy, (Edward E. Wilson, and Clyde C. Eisher, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "(No. 14014.\nJudgment reversed.)\nThe People of the State of Illinois, Defendant in Error, vs. Anna M. Heisler, Plaintiff in Error.\nOpinion filed October 22, 1921\nRehearing denied Dec. 9, 1921.\n1. Criminal law\u2014procuring an abortion and attempting to do so are distinct offenses\u2014variance. To cause a woman to abort or miscarry and to attempt to procure or produce an abortion are separate and distinct offenses, and where an indictment charges the defendant with murder caused by procuring an abortion and the proof shows clearly that no abortion was produced the variance is fatal; but an erroneous conviction under such indictment is not a bar to a prosecution for murder in attempting to produce abortion.\n2. Same\u2014abortion and attempted abortion defined. In criminal law abortion is the expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life, while an attempt to procure an abortion is an unsuccessful attempt to bring forth the foetus, or, in other words, a missed abortion.\nWrit of Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.\nQ. J. Chott, for plaintiff in error.\nEdward J. Brundage, Attorney General, Robert E. Crowe, State\u2019s Attorney, and James B. Searcy, (Edward E. Wilson, and Clyde C. Eisher, of counsel,) for the People."
  },
  "file_name": "0098-01",
  "first_page_order": 98,
  "last_page_order": 101
}