The jury were wrongly instructed that the defendant might be convicted under the Gen. Sts. c. 165, § 9; because those statutes were not in force when the alleged offence was committed. The defendant, if guilty, is liable under St. 1845, c. 27, which is still in force as to offences committed previously to its being repealed. Gen. Sts. c. 181, § 5. As the jury, under the instructions given to them, might have convicted the defendant without proof that the woman was “pregnant with child,” which they could not do under the St. of 1845, the conviction cannot be sustained. The indictment is well framed on St, 1845, c. 27, which is still in force as to the offence charged against the defendant; and he may legally be convicted under the statute, on a new trial, if proof is given that he did the act alleged to a woman pregnant with child when it was done.

Exceptions sustained.