¶1It might be difficult to determine, from the form of the indictment, whether it was intended to charge an assault with intent to commit a felony, under the Gen. Sts. e. 160, § 33, as is contended by the Attorney General; or an offence under the Gen. Sts. c. 165, § 9. But as it is stated in the bill of exceptions to be “ an indictment for procuring an abortion,” we must assume that it was so treated at the trial. No objection on account of duplicity in this particular was made at the trial, or in the motion to quash, and it is therefore not open now.
¶2*54The objection, made in the motion to quash, on account of duplicity in charging both an intent to procure a miscarriage and an intent to kill and murder the child, and also those to the insufficiency of the allegations for an indictment in the latter aspect, are not insisted on here.
¶3Upon his motion to quash the defendant insists that there is no allegation of time and place, when and where the offence was committed. But the fair and reasonable construction of the language of the indictment appears to us to be that the time and place set forth, at which the assault is alleged to have been committed, extends equally to the particular acts set forth as means by which the abortion is alleged to have been accomplished, and which constituted what is called an assault.
¶4The objection that there is no sufficient description of the instrument alleged to have been used, and of the means by which or manner in which it was used, does not appear to us to be well founded, and is not pressed in argument here.
¶5The same remark will dispose of the defendant’s prayer for instructions in relation to the character of the instrument used.
¶6The second prayer, that it was necéssary to prove an assault, was properly refused; and the instruction that the defendant might be convicted although the operation was performed by the procurement and consent of the woman, was rightly given. The act is made criminal without regard to the consent of the person upon whom it is performed. The allegation of an assault is in no sense descriptive of the offence, or of the acts which constitute the offence. It may be rejected as surplusage. The same is true of the allegation of intent to kill and murder the child.
¶7The main question arises upon the instructions asked for, and those given upon the evidence offered to prove an alibi. Witnesses for the prosecution testified with great particularity and confidence, that the operation was performed at Athol, on the 20th day of May, 1873 ; and the woman upon whom it was performed testified that she made an entry of the date in her diary on the evening of the same day or the morning of the next day, and had examined the memorandum since, and shortly before the trial. There was no testimony as to any other date. The defendant introduced testimony tending to show that on the 19th, 20th and 21st days of May 1873, he was in Norwich, Vt., more *55than a hundred miles distant from Athol; and asked the court to instruct the jury “ that there was no evidence in the case which would warrant the jury in finding that the defendant did the act complained of upon any other day than May 20,1873 ; and if the jury are satisfied that the defendant did not do the act upon that day they cannot convict.”
¶8This instruction the court refused to give, and instructed the jury that the exact day was not material; that “ if the jury were satisfied that the witnesses for the government were in error as to the date stated by them, this was a proper matter to be considered upon the question of the degree of credit they were entitled to as to other matters; and if this, either alone or in connection with other evidence, caused the jury so far to doubt as to their truth and the reliability of their testimony in other matters, that they were not satisfied beyond doubt that the defendant did perform the operation as alleged, then they should acquit the defendant.”
¶9These rulings and instructions were right. If the alibi was satisfactorily proved, it was for the jury to say what effect it ought to have upon the testimony of the witnesses for the prosecution. It might discredit them altogether. If it did not have that effect, then it required an inference of some mistake on their part either as to the person who performed the operation, or the true date of its performance. Their testimony was no more positive as to the date than it was as to the person ; and they were at least quite as liable to have made a mistake as to the true date, as they were in regard to the identity of the person. But in any aspect it was entirely a question of fact for the jury, and was rightly left to them to decide. Exceptions overruled.