The Assizes
| DOI | 10.1177/002201836502900402 |
| Published date | 01 October 1965 |
| Date | 01 October 1965 |
| Subject Matter | Article |
The Assizes
ABORTION:
"POISON
OR OTHER NOXIOUS
THING"
R. v. Marlow
THE defendant in this case at the Central Criminal Court
(49
Cr. App. R. 49) was charged with offences under
sections 58 and 59 of the Offences against the Person Act,
1861. Under the first of these sections it is afelony if a person
with intent to cause the miscarriage of a woman unlawfullr
causes to be taken by her "any poison or other noxious thing' .
Under the second, "whosoever shall unlawfully supply any
poison or other noxious thing, knowing that the same is
intended to be unlawfully used or employed with intent to
procure the miscarriage of any woman, shall be guilty of a
misdemeanour".
The
short point raised by the defence was
whether within the meaning of each of the sections there must
be evidence that the poison or other noxious thing is an
abortifacient.
If
asubstance is not capable of producing an
abortion, whether it be a poison or a noxious thing not a
poison, it was submitted that there cannot be a conviction
under either of these sections.
In
a reasoned judgment
Brabin,
J.,
rejected this submission.
It
is clear from R. o.
Isaacs
(1862, 9Cox 228) that where
asubstance is harmless, it cannot be a noxious thing within
the meaning of section 59. R. o, Hennah (1877, 13 Cox
547),
a case under section 24, establishes that athing may be noxious
when given in certain quantities, though when given in small
quantities it is not noxious.
In
R. u. Hollis &Blakeman
(1873,
12
Cox 463) Bramwell, B., is reported as saying:
"A
noxious
thing within the statute means a thing that will produce the
effects mentioned in the
statute-that
is, a miscarriage".
And in R. o.
Osborne
(1919, 84 J.P. 63) Rowlatt,
J.,
in the
course of his summing-up to the jury used this sentence:
"Therefore the substantial question was whether these things
were noxious in the sense of being abortives to his knowledge".
In
this case there was no evidence other than that given by the
248
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