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07/14/55 Henry L. Peckham, Jr., v. United States of America

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 14, 1955

HENRY L. PECKHAM, JR., APPELLANT

v.

UNITED STATES OF AMERICA, APPELLEE. 1955.CDC.103 DATE DECIDED: JULY 14, 1955

*fn3 REG

v.

GOODALL, 2 COX CRIM.CASES 41 (1846); REG.

v.

TITLEY, 14 COX CRIM.CASES 502 (1880).

Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.

Petition for Rehearing Denied Aug. 31, 1955, Writ of Certiorari Denied Dec. 5, 1955.

PER CURIAM.

Appellant was convicted on an indictment charging that on or about May 2, 1951, he used instruments upon and administered drugs to a named woman, then pregnant, with intent to procure her miscarriage. His chief, though not his only, contention on this appeal is that the District Court erred in instructing the jury that it was immaterial whether or not the woman was pregnant, if at the time the defendant believed she was pregnant.

If the statute makes pregnancy immaterial, the indictment cannot make it material. The government's brief contains a table showing that the so-called abortion statutes of many states explicitly make pregnancy necessary (e.g., "any pregnant woman"); those of many other states explicitly make it unnecessary (e.g., "a woman whether pregnant or not"); and those of a few states say "any woman", or "a woman", without mentioning pregnancy. Formerly the District of Columbia statute used the expression "any pregnant woman" or "any woman in any condition of pregnancy". *fn1 But the Code of 1901 omitted all reference to pregnancy and adopted the phrase "any woman", which has since been retained. *fn2 A similar change in the English statutes has long been recognized as making pregnancy unnecessary.*fn3 We think the change in our statute has the same effect. *fn4

We find no error affecting substantial rights.

Affirmed.


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