The opinion of the court was delivered by

This indictment is framed under the .supplement of March 1st, 1849. So much of it as is material to this inquiry is as follows: “ If any person or persons maliciously or without lawful justification, with intent to cause and promre the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, or noxious thing; • and if any person or persons, maliciously and -without lawful justification, shall use any instrument or means whatever with the like intent, and every person with the like intent, knowingly aiding and assisting such offender shall, on conviction,” &c.

The indictment contains four counts, and the motion is made to quash the whole of them. They are all subject to the same objection. To make the transactions mentioned criminal under the statute, it is necessary that they should have been done with intent, to cause and procure the miscarriage of a woman then pregnant, <fce. These words, cause and procure, are not used in any of the counts. They seem to have been purposely kept apart, for the word cause is used in the first count, and the word procure in each of the other three. This objection seems to me to be fatal, for it is the intent with which the thing is done that makes it criminal at all. That intent, to become criminal, must be to *426■cause and procure a miscarriáge. The statute has not made the intent to cause or procure sufficient, which would have justified the use of either word alone; but it has connected the two together, and made a conjunction of both necessary to constitute the crime. If both Avords are not used, then the intent, which the statute makes criminal, is not charged in the indictment, and of course there is no crime charged. "The only plausible ansAver that can be given to this objection is, that both Avords mean substantially the same thing, and therefore -the use of both are not necessary. But the laAV has long since prohibited both courts and prosecutors, from ■speculating on the meaning of words used in creating penal statutes, either by instituting analogies or otherwise. The legislature has said that both words are necessary to constitute ■crime, and it is not for us to say that one is enough for the purpose. This would be making the law different from Avhat the law making power has made it; and if we can do it in this case, in what case may Ave not do it; and if Ave may do so in this court, Avhat court may not try- the experiment; and if a prosecutor may lawfully omit one of the Avords Avhich creates an offence, on the ground of its being analogous to another Avord already introduced, Avhy may he not omit all the words which go to characterize the offence as criminal, and substitute other Avords which might be supposed to have about the same meaning. This, I apprehend, has never been permitted, and never should be.

The law on this subject seems to be very well settled. Bishop, in the first volume of his Avork on Criminal Law, § 134, lays down the rule broadly but positively. In speaking ■of penal statutes, he says, that “ no case is to be brought by construction within the statute Avhile it falls not Avithin all its words. If a case is fully within the mischief to be remedied, if not Avithin the words, construction will not be permitted to bring it within the statute.” The doctrine thus enunciated is sustained by many cases there cited. It is sound and salutary, as Avell as safe, and should not be departed from. If we once admit such a practice in the *427framing of indictments, there is no telling where it will end. We should not permit it to begin. No one can certainly tell what precise meaning the legislature intended to attach to those words which they have used. This principle is strongly sustained, moreover, in the case of The State v. Gibbons, 1 South. 40.

The first, second, and fourth counts are subject to another ■objection, quite as serious as the one just considered. The means or things made use of to produce the miscarriage are all charged disjunctively, that is to say, it is charged in substance in these counts, that the defendant did administer, &c., to the female a certain poison or drug or medicine or noxious .thing to the jurors unknown. This must certainly be bad, for two reasons: first, it charges the defendant with nothing in direct and express terms. It does not charge that he administered the whole of the prohibited things, nor any one of them, but charges that he did one tiling or another, or another, which can mean nothing; secondly, it does not apprize the defendant against what he is to defend himself. The inference from the language, as used, is not that he employed all the prohibited articles and means, but that he used some one of them, but which it was the grand jury did not know, and (lid not say, consequently they have left the defendant in as much doubt as they were themselves.

The law, on the subject of making these charges disjunctively instead of conjunctively, seems also very well settled. The rule is laid down in Wharton’s Crim. Law, page 364, very explicitly, and it is sustained by numerous authorities, that the disjunctive form is not sufficient.

I think, therefore, that the indictment should be quashed.

Indictment quashed.

Cited in State v. Malloy, Same v. Adams, 5 Vr. 414.