People v. Axelsen — 223 N.Y. 650

Majority

p. 650

The People of the State of New York, Respondent, v. Evelyn Axelsen, Appellant.

Headnote

People v. Axelsen, 182 App. Div. 897 , affirmed.

(Argued April 1, 1918;

decided April 23, 1918.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which affirmed a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of attempt to commit abortion. The question of law on appeal was: “ Can a person, under subdivision 2, section 80 of the Penal Law, be convicted of the crime of attempting to commit the crime of abortion when the indictment and the proof affirmatively show that the subject was not a pregnant woman? ”

p. 651

Saul J. Dickheiser for appellant.

Harry E. Lewis, District Attorney {Harry 0. Anderson of counsel), for respondent.

Judgment affirmed on the ground that pregnancy is not a material element of the crime of abortion under subdivision 2 of section 80 of the Penal Law (Commonwealth v. Taylor, 132 Mass. 261 ); no opinion.

Concur: Chase, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Not voting: Hogan, J.