Appeal, No. 98, April T., 1955, from judgment of Court of Oyer and Terminer of Fayette County, March T., 1954, No. 5/42, in case of Commonwealth of Pennsylvania v. Dorothea G. Willard, alias Dorothea G. Harmon. Judgment reversed.
Samuel J. Feigus, with him Thomas A. Waggoner, Jr., for appellant.
Fred L Brothers, District Attorney, with him Thomas J. Kalman, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 179 Pa. Super. Page 369]
This appeal involves, inter alia, the question whether the evidence is sufficient to sustain the defendant-appellant's conviction of an attempt to commit abortion. In brief the issue is whether the acts committed by the appellant constituted an attempt within the meaning of the law or were merely preparatory to the commission of a crime. Since in our opinion the acts of the appellant did not constitute an attempt, it follows that the evidence was insufficient to sustain her conviction. Consequently, it will not be necessary to discuss or decide the other contentions advanced by her.
Marion Gannon, an employe of a detective firm, was called upon by the State Police to assist in obtaining
[ 179 Pa. Super. Page 370]
evidence that defendant was performing abortions. Pursuant to the plan, she called defendant and made an appointment, but for some reason it was not kept. Another appointment was made and kept, the details of which appear as follows: Marion Gannon left Pittsburgh with several members of the State Police and proceeded to defendant's home. They arrived around 6 P.M. and Marion an one of the officers, Packler, the alleged paramour, were admitted to the home by defendant. They talked for a while about generalities and then Marion told defendant that she was two months pregnant and that since she was separated from her husband that she feared her mother's reaction. Marion actually was a married woman and at the time believed herself to be pregnant. Packler took $160.00 from his wallet, offering it to defendant who instructed him to give it to Marion. Marion took the money and she and defendant went into an adjoining bedroom. Packler went into the kitchen. Marion then handed the money to defendant who put it into one of the bureau drawers. Marion sat at the foot of the bed. A table leaf was lying at about the middle of the bed and slightly to her right. There was a utility pan with disinfectant on the floor. While Marion sat there, defendant instructed her to remove her underthings, but she did not do so. Defendant appeared through the door of the adjoining bathroom with several instruments, identified as a forceps, vaginal speculum and tweezers, covered by a towel. When she was the distance of the bed length away, Marion called for Packler, who ran in, identified himself, took the instruments from defendant and removed the money, which had previously been identified by its serial numbers, from the bureau drawer. Defendant was in due course tried and convicted of an attempt to commit abortion.
[ 179 Pa. Super. Page 371]
Section 718 of the Penal Code of 1939, P.L. 872, 18 P.S. Sec. 4718, under which the indictment was drawn, provides in part as follows: "Whoever, with intent to procure the miscarriage of any woman, unlawfully administers to her any poison, drug or substance, or unlawfully uses any instrument, or other means, with the like intent, is guilty of felony ..." It is therefore unnecessary that an actual abortion occur, nor is it necessary that the woman actually be pregnant, so long as defendant believed her to be and that the instruments used, drugs administered, or other means used were believed to be sufficient to produce an abortion. See Commonwealth v. Longwell, 79 Pa. Superior Ct. 68. The statute therefore does not make the actual abortion the crime, but instead sets forth the acts which constitute an attempt to produce an abortion and makes this mere attempt the crime. Com. v. Sierakowski, 154 Pa. Superior Ct. 321, 35 A.2d 786.
There is no disagreement here with the accepted definition of "attempt". The disagreement here, as in most cases, is in determining whether the acts of the defendant were sufficiently close or proximate to the completed crime so that it could be said that they were done in pursuance of the intent to commit the crime as distinguished from mere preparation to commit the crime. The distinction is difficult to make in many cases. It is our opinion that the acts here were interrupted in ...