2. Administering of Poisonous or Injurious Substances

multitude of criminal writers to deny the political immutability of abortion vainly attempted by a joiner upon herself467 .

Whatever may be the validity of these objections “in jure costituendo” - and there are many who strongly dispute them, "de jure condito”, if the law itself does not by an express provision exclude the attempt in this crime, it is not seen why there should be impunity when unambiguous acts of execution leave no doubt as to the determined intent of the woman to attempt miscarriage. As Crivellari says: The difficulty of proof in the concrete case is not an obstacle, because such difficulty does not exclude the possibility:

“Ed ove sia possibile la prova e la ragion giuridica non escluda il conato, deve essere represso anche nel procurato aborto, come in qualsiasi altro misfatto”468 .

469

2. Our Criminal Code has not, quite rightly, adopted the continental practice of granting a considerable reduction of punishment where the crime is committed by the woman herself or by certain close relatives "to save the honour or reputation” of the woman herself or of her family: spurious honour and reputation in most cases.

2. Administering of Poisonous or Injurious Substances.

This is the crime dealt with in Section 258 which lays down that:

“Whosoever shall, in any manner, maliciously administer to, or cause to be taken by another person any poisonous or noxious substance capable of causing any harm or injury to health, shall, on conviction, be liable to hard labour or imprisonment for a term from thirteen months to two years, provided the offence does not in itself constitute the offence of homicide, completed or attempted, or a serious injury to the person” .

The formal element of this crime is indicated by the word “maliciously” which in the context seems to mean “intention to harm”. The mere wilfulness of the act of administering the substance or causing it to be taken is not enough without the

467 Ibid, para. 1269 468 Op. cit., Vol. VII, p. 1016, para. 118. 469 Vide contra Chaveau et Helie who exclude the possibIlity of attempt in every case. (Op. cit., Vol. II, p. 42 – 43, para. 1369 – 1373.)

knowledge of its poisonous or noxious character and of its capacity to cause harm, and without a wrongful intent. As Chaveau et Helie say with regard to the more or less similar provision of article 317 of the old French Code:

“La volontà non e. sufficiente per determinare la colpabilità: e’ mestieri che questa volontà sia caratterizzata dalla intenzione di nuocere”470 .

The substances to which the provision relates are poisonous or noxious substances capable of causing harm or injury to health. Taylor has described a poison as a substance which, when taken into the mouth or stomach, or when absorbed into the blood, is capable of affecting seriously the health or of destroying life by its action on the tissues with which it immediately, or after absorption, comes into contact. For the purpose of this provision of the law, however, it is not necessary that the words "poisonous substance" be defined further than as a substance which, when administered or caused to be taken, is capable of being harmful or injurious to health.

It seems that, though the substance be in itself poisonous or noxious, the crime will not arise if the quantity administered or caused to be taken is in fact innocuous.

The crime under discussion is completed notwithstanding that the victim has not, in fact, suffered any harm, if the substance maliciously administered or caused to be taken was capable of causing harm or injury to health.

In England, in regard to the corresponding offence now contemplated by the Offences Against the Person Act of 1861, it was held that it is unnecessary for proving administering to show that the thing was taken into the stomach, and that it is not necessary that there should be actual delivery by the hand of the defendant. Thus, where a servant, in preparing breakfast for her mistress, put arsenic into the coffee, and afterwards told her mistress that she had prepared the coffee for her, and the mistress drank the coffee. Park J. held that it was an administering within the meaning of the statute. So also where the defendant knowingly gave poison to A to administer as a medicine to B, but A neglecting to do so, it was accidentally given to B by a child, this was held to be an administering by the defendant, as much as if the defendant had given the poison to B by her own hands471 .

470 Op. cit., Vol. II, Part II, p. 48, para. 1381 471 Vide cases cited in Archbold, op. cit., p. 928