People v. Papp (165 A.D. 971, 1914)

Mo opinion. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ.; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I am unable to concur with the other members of the court that the judgment of conviction should be affirmed; on the contrary, I think it should be reversed and the defendant discharged. When subdivision 2 of section 80 of the Penal Law is read in connection with subdivision 1 of the same section and prior statutes bearing on the same subject, I am of the opinion that one cannot be convicted under subdivision 2 of section 80 of the Penal Law of an attempt tó commit an abortion without proving that the person upon whom the attempt was made was at the time pregnant. (People v. Jaffe, 185 N. Y. 497; People v. Teal, 196 id. 372.) As was said by Bartlett, J., in the Jaffe case: “ If all which an accused person intends to do would if done constitute no crime, it cannot be a crime to attempt to do with the same purpose a part of the thing intended.” So, in the case at bar, had the defendant succeeded in doing all that she intended to do, she would not have committed the crime of abortion because the person upon whem she attempted to operate was not at the time pregnant. Her attempt, therefore, to operate, did not, I think, make her guilty of an attempt to commit an abortion.