Headnote
Appeal from of General Sessions, New York County. Paulina Papp was convicted of an attempt to commit an abortion, and she appeals. Affirmed. Samuel I. Hartman, of New York City, for appellant. George Z. Medalie, of New York City, for the People.Judgment affirmed.
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 (Consol. Laws, c. 40) 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 to 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 , 78 N. E. 169 , 9 L. R. A. (N. S.) 263 , 7 Ann. Cas. 348; People v. Teal, 196 N. Y. 372 , 89 N. E. 1086 , 25 L. R. A. (N. S.) 120 , 17 Ann. Cas. 1175. As was said by Bartlett, J., in the Jaffe Case: “If all * * * 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 whom 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.
Cases cited
- People v. Jaffe 185 N. Y. 497 p. 1102