officer informed the court that it must find that the accused stole the letters described which letters were then in the place alleged and had not been delivered to the persons to whom they were directed. His instructions clearly required a finding that the items taken were mail matters stolen before delivery to the rightful addressees from the unit mail box. The term "as alleged" in the instruction plainly refers to the specified unit mail box. If more specificity in the instructions regarding that element was desired it was counsel's duty to request it, and, not having done so, any lack of clarity in the instructions must be regarded as waived. (Citing U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99, 106; CM 364188, Benson, 11 CMR 569, pet den 12 CMR 204; CM 368292, Reese, 14 CMR 387.) ACM 9467, Blair (1954) 18 CMR 581.

§ 65.1. Generally.

§ 65. Pandering; Prostitution

Accused was charged with publicly associating with a notorious prostitute to the disgrace of the armed forces, in violation of UCMJ, Art 134. In finding him guilty, the court excepted the word "notorious." Held: The word "notorious” alleges an essential element of the offense of public association with a prostitute-an offense which may properly be charged under both Arts 133 and 134 (CM 237858, Sparhawk, 24 BR 127, 132; CM 276248, Stroud, 48 BR 231, 234; CM 353443, Blount, 5 CMR 297, 303; CM 355287, Loney, 8 CMR 533, 541). Accordingly, the court having excepted the word "notorious" from the specification and having failed to substitute an allegation from which the notoriety of the prostitute may be inferred, an offense cognizable under the Code has not been made out and the findings must be set aside (U. S. v. Fout (No. 3631), 3 USCMA 565, 15 CMR 121). 374664, Mallory (1954) 17 CMR 409.

§ 66.1. Generally.

§ 66. Abortion

CM

On a trial for procuring an abortion, the evidence showed that as a result of arrangements made by the accused with an illegal medical practitioner, a syringe containing a purported abortifacient was inserted into the woman alleged. It was also established that such an operation was not necessary for the health or life of the woman involved. However, the proof failed to establish that the woman was pregnant and that a miscarriage resulted. Held: The elements established cannot equate the common-law crime of abortion or the common-law crime of attempted abortion (1 Am Jur, Abortion §3). However, because of the inherently immoral, indecent, and unhygienic character of the acts established, they are offenses of a nature to bring discredit upon the armed forces within the meaning of the second clause of UCMJ, Art 134. (See ACM 5636, Hughes, 7 CMR 803, 810; ACM 5583, Fox, 6 CMR 533; ACM 8037, Freeman, 15 CMR 639; ACM 1271, Ord (BR), 2 CMR(AF) 84.) The competent proof herein satisfies the standards required for the military offense of an attempt to cause a miscarriage of any woman

believed to be pregnant. (Citing CM 239731, Buck, 25 BR 257.) Pregnancy of the female is not a material element of the offense of attempted miscarriage in military jurisprudence. (Citing CM 239731, Buck, 25 BR 257.) ACM 8829, Woodard (1954) 17 CMR 813.

§ 66.3. Included offenses.

The accused was charged with procuring the miscarriage of a certain woman. It was alleged that the operation was unnecessary to preserve the health or life of the woman. It was determined that the offense charged was not established because of insufficient evidence that the woman was pregnant. However, the evidence was sufficient to establish the lesser included offense of attempt to cause a miscarriage of a woman believed to be pregnant.

Held that:

-the fact that every attempt requires a specific intent and a specific intent was not a required element of the offense of consummated abortion as originally alleged does not preclude a finding of a lesser included offense of attempted abortion. So long as the offense alleged is not one impossible of intentional commission an attempt is always a lesser included offense thereof. The fact that the allegations spelling the major offense do not literally include a specific intent does not deter such a holding. Such a specific intent may be implicit within the specfication definition of the offense, or, if such specific intent is unimportant for the purposes of the major offenses, it is present for the purposes of calculating lesser included offenses. (See ACM 4974, Lakey, 4 CMR 837, 840; U. S. v. Headspeth (No. 1973), 2 USCMA 635, 10 CMR 133; MCM, 1951, par 159, Appx 12; UCMJ, Art 79; Federal Rules of Criminal Procedure 31c.)

-the specifications do not reflect a proscriptive intent based solely in the protection of the unborn child's life. Rather, the incorporation of the language relating to the necessity of the operation for the life or health of the mother points the proscription directly toward the protection of the life, morals and decency of the woman involved. Accordingly, a finding of the lesser included offense is not precluded on the ground that the gravamen of the principal offense of consummated abortion is the destruction of the life of the child while the offense of attempted abortion has the protection of the life, morals and the decency of the woman as its essence and therefore a finding of the lesser offense would change the nature of the offense (Citing Williams v. U. S., 138 F2d 81; U. S. v. Baguex (No. 699), 2 USCMA 306, 8 CMR 106; U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94, 96 ACM 8005, Anderson, 15 CMR 919.)

in every offense of consummated abortion, not only is the fact of pregnancy an element, but belief by the accused that the female is pregnant is implicit within the allegations without special delineation. Accordingly, a finding of the lesser included offense of an attempt to cause an abortion of any woman believed to be pregnant is not precluded on the ground that it adds an additional element, that is, belief in the pregnancy of the female. (See U. S. v. Headspeth (No. 1973), 2 USCMA 635, 10 CMR 133.)

- the fact that the principal offense of consummated abortion is impossible because the woman is not pregnant does not preclude a finding of the lesser included offense of attempted abortion. The actual impossibility of completing a full miscarriage because of nonpregnancy does not prevent an attempt to cause such a miscarriage from possessing criminality because of the public's right to protect the female's person, which is implicit within the basic proscriptions against abortion, and morals, decency and hygienic standards have been infringed by the attempt to commit it (see CM 228955, Cruz-Gerena, 49 BR 245; 1 Wharton's Criminal Law, secs 225, 791, 12th ed, 1933; see also MCM, 1951, par 159.) ACM 8829, Woodard (1954) 17 CMR 813.

§ 66.5. Charges and specifications.

Under one charge against the accused it was alleged that he did, in conjunction with a named person, at or near a certain place, unlawfuly procure the miscarriage of a named female who was then pregnant with child, by the use of a certain instrument and substance, to wit: a syringe containing an unknown solution, in and upon the named female, the use of the said instrument and substance being not then and there necessary to preserve the life and health of the female. Under another specification it was alleged that he did, at or near a certain place, conspire with a named person to commit an offense under the Uniform Code of Military Justice, to wit: the unlawful and wrongful procurement of the miscarriage of the named female who was then pregnant with child, the said miscarriage not then and there being necessary to preserve the life and health of the female and in order to effect the object of the conspiracy the person conspired with did unlawfully and wrongfully procure the miscarriage of the woman who was then pregnant with child by the use of a certain instrument and substance to wit: a syringe containing an unknown solution, in and upon the said female, the use of the said instrument and substance being not then and there necessary to preserve the life or health of the female. Held that:

the phrase "pregnant with child" as used in the specifications herein is the equivalent of viable pregnancy at any stage and does not equate the phrase "quick with child" which means the pregnancy must have reached a stage where the mother feels an independent movement within her. (Citing Am Jur, Abortion, §§ 17, 18; Critchton v. U. S., 92 F2d 224; Harrod v. U. S., 29 F2d 454; 16 ALR2d 949; CM 239731, Buck, 25 BR 257; contra CJS, Abortion, sec 6d.)

- the terms "procure" and "procurement" as alleged in the above specifications have their simple and common meanings of "cause" or "bring about". In that sense the above specifications charge that the accused and his co-actor caused the abortions, and that the accused and his co-actor conspired to cause abortions. They do not allege the crimes of "procuring abortions" or "conspiracy to procure abortions" in the sense of brokerage in abortions.

if the offense of "procurement of an abortion" had been in

tended to be alleged the specification should have read in substance either: "In that (accused), did, at (place and date) wrongfully and unlawfully induce (named female) then pregnant with child to permit (name of person performing abortion) to perform a miscarriage upon her by use of (instruments and substance upon the said female) the use thereof not beng necessary to the preservation of life or health of the (named female)" or; "In that (accused) did, at (place and date) wrongfully and unlawfully procure (induce) a named person to perform a miscarriage upon (named female) then pregnant with child, by (use of instruments and substance upon the named female), the use thereof not being necessary to the preservation of life or health of (named female)." ACM 8829, Woodard (1954) 17 CMR 813.

[See 1 Am Jur, Abortion §§ 17, 18, 25 et seq.]

§ 66.7. Evidence, generally.

The accused was charged with procuring an abortion and conspiracy to procure an abortion. The prosecution offered in evidence statements made by the accused to an OSI agent to the effect that he believed his girl was pregnant and he had caused a certain person to perform an abortion upon her. The offenses charged were not established because of a failure to prove pregnancy and miscarriage, but all other elements were established and it was determined that the evidence was sufficient to show the lesser offenses of attempted abortion and conspiracy to attempt abortion. Held: Notwithstanding the fact that the principal offenses alleged were not established by the evidence, these inculpatory statements by the accused were properly received in evidence and considered by the court since the record clearly discloses some evidence tending to establish the probability of the existence of each element of the offenses. (Citing U. S. v. Petty (No. 2155), 3 USCMA 87, 11 CMR 87; MCM, 1951, par 140a; U. S. v. Isenberg (No. 579), 2 USCMA 349, 8 CMR 149; U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; Forte v. U. S., 94 F2d 236; Ercoli v. U. S., 131 F2d 354.)

Held also: Since the accused's statements were properly before the court on the principal offenses such evidence could be considered with respect to the lesser included offenses. ACM 8829, Woodard (1954) 17 CMR 813.

$66.9. Evidence, sufficiency.

The accused was found guilty of, in conjunction with another, procuring the miscarriage of certain women. The evidence showed that after a female companion with whom he had been intimate concluded that she was pregnant, the accused made arrangements with a medical student for an abortion. The student inserted the purported abortifacient and the accused paid the agreed fee. The student then suggested that the accused find other clients for him and the accused subsequently made arrangements for him to perform similar operations on female companions of two other airmen. The women involved testified, inter alia, that each of them had had prior sexual intercourse, each had a cessation of the menses for a specified period and that soon after the administration of the

purported abortifacient, the menses resumed and in one instance was attended by severe cramps. Held: The evidence is insufficient to establish the elements of a viable pregnancy and miscarriage. There is authority indicating that these matters are subjects for expert testimony and that the women themselves are not qualified. Assuming however that their testimony was competent, it was too insubstantial to establish those elements. However, the evidence does establish that a syringe with an unknown substance purporting to be an abortifacient was used in each case on and in the respective woman with the purpose of procuring miscarriages. Furthermore, the evidence amply establishes that in no instance was the operation required for the health or life of the woman involved. The illicit relationships between the women and the airmen, the thought in the mind of each woman that she was pregnant, the desire on the part of the woman to obviate normal birth because of moral and legal implications, the surreptitious negotations with an illegal medical practitioner, the fact that each woman was apparently well and in normal health prior to the operations, and the fact that none of the women had been advised by a legitimate practitioner to have a miscarriage for reasons of health or life all constitute circumstantial proof of facts satisfying this element of proof. ACM 8829, Woodard (1954) 17 CMR 813. [As to included offenses found in this case see same case, supra § 66.3.]

The weight of authority makes the absence of fact showing that an abortion was required for the health or life of the woman involved an ingredient of the corpus delicti which the government must establish as part of its case. (Citing ACM 8350, LaCour, 17 CMR 559; cases annotated at 153 ALR 1266; contra Williams v. U. S., 138 F2d 81, 153 ALR 1213, and cases annotated at 153 ALR 1272.) ACM 8829, Woodard (1954) 17 CMR 813.

[See 1 Am Jur, Abortion § 48.]

The accused was found guilty under a specification which alleged that he did, in conjunction with another, unlawfully procure the miscarriage of a named female. The evidence showed that after a female companion with whom he had been intimate concluded she was pregnant, the accused made arrangements with a medical student for an abortion. The student inserted the purported abortifacient and the accused paid the agreed fee. Held: Under the specification, the accused's guilt could be predicated upon the theory of either common-law principal or common-law aider and abettor. However, the proof is conclusive that his complicity was limited to the aider and abettor theory and as such he was a principal by statutory fiat. (See U. S. v. Freeman and Emerson (No. 3211), 4 USCMA 76, 15 CMR 76; U. S. v. Marshall and Shelton (No. 548), 2 USCMA 54, 6 CMR 54; U. S. v. Houghtaling (No. 573), 2 USCMA 230, 8 CMR 30; UCMJ, Art 77; MCM, 1951 par 156; U. S. v. Jacobs (No. 152) 1 USCMA 209, 2 CMR 115; ACM 8408, Everett 16 CMR 676.) ACM 8829 Woodard (1954) 17 CMR 813.

[See 1 Am Jur, Abortion $ 8.]