¶1delivered the opinion of the court.
¶2The indictment in the present case, omitting the formal parts, is as follows.: “That one Georgia Proctor, late of the county aforesaid, on the 1st day of April, A. D. 1911, with force and arms, in the county aforesaid, and within the jurisdiction of this court, then and there in and upon the body, of one Carrie Hallbach, a human being, feloniously, willfully, and of her malice aforethought, did make an assault, and did willfully, feloniously, and of her malice aforethought, force, thrust, and strike a certain instrument, to the grand jurors unknown, which she, the said Georgia Proctor, had and held in her hand, up and into the womb and body of the said Carrie Hallbach, who was then and there pregnant with *795child, with the criminal intent thereby to cause and procure, without legal justification, the said Carrie Hallbach to miscarry, thereby then and there inflicting on the said Carrie Hallbach, in. and about her womb and other internal parts, certain bruises, wounds, and lacerations, and creating in the said Carrie Hallbach a mortal sickness and feebleness of body, of which mortal "bruises, wounds, lacerations, sickness, and feebleness of body she, the said Carrie Hallbach, did then and there languish, and did then and there die.”
¶3The evidence tended to show that defendant performed the acts set out in the indictment; and that the woman’s death resulted from the attempts to create a miscarriage.
¶4The district attorney requested the following instruction: “The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that Georgia Proctor, the defendant, in and upon the body of one Carrie Hallbach, a human being, feloniously, willfully, and of her malice aforethought, did make an assault, and did willfully, feloniously, and of her malice aforethought, force, thrust, and strike a certain instrument, to the grand jurors unknown, which she, the said Georgia Proctor, had and held in her hand, up and into the womb and body of the said Carrie Hallbach, who was then and fhere pregnant with child, with the criminal intent thereby to cause and procure, without legal justification, the said Carrie. Hallbach to miscarry, thereby then and there inflicting upon the said Carrie Hallbach in and about her womb and other internal parts, certain mortal bruises, wounds, and lacerations, and creating in the said Carrie Hallbach a mortal sickness and feebleness of body, of which mortal bruises, wounds, lacerations, sickness, and feebleness of body she, the said Carrie Hallbach, did then and there languish, and then and there did die, then she is guilty of murder, and the jury may so find.”
¶5This instruction was refused by the court; but the *796court did instruct the jury, if they believed the facts stated in the indictment they would convict defendant of the crime of manslaughter. There was a verdict of not guilty, and this appeal is predicated upon the theory that “a question of law had been decided adversely to the state” by reason of the court’s refusal to give the instruction above set out.
¶6It will be noted that the indictment is not the statutory indictment, but undertakes to set out the acts which it is alleged constitute the crime of murder. The gist of the charge is found in the words “with the criminal intent thereby to cause and procure, without legal justification, the said Carrie Hallbach to miscarry. ’ ’ The crime which defendant intended, and was endeavoring to commit, would be manslaughter, as defined by section 1235, Code 1906, if she had succeeded in accomplishing her design. Section 1233 was intended to meet such cases. The felonly the defendant “was attempting to commit” was manslaughter, and in such attempt, it is alleged, she killed the mother.
¶7Section 1234 has no application to the present case.