Hunter v. StateHunter v. State
- Reporters:
- , ,
- Before:
- Bloodworth
Thе indictment in this case is based on section 81 of the Penal Code of 1910, and сharges that tlie plaintiff in error did unlawfully аnd feloniously “administer to Lilia Burton, aliаs Lilia Burden, a woman pregnant with child, certain medicine and substance to the grand jurors unknown, and did use and employ certain instruments and other means to the grand jurors unknown, and by means and-manner unknown to said grand jurors, with intent thereby to destroy such child, and which was not necessary to preserve the life of such mother, nor was it advised by two physicians to be necessary for such purpose, whereby and because of said above-described acts of said Abbie Hunter and Laura Crandell, the dеath of said child and mother were thеreby produced.” The word “ child,” in the phrase “ pregnant with child,” as used in section 81, supra, according to the сonstruction placed upon it by the Supreme Court, means an “unborn child-sо far developed as to be quiсk, . . so far developed as to move or stir in the mother’s womb.” Summerlin v. State, 150 Ga. 176 (103 S. E. 461), and cases cited. Hnder this definition, before the accused could be legally cоnvicted on the indictment in this case, thе burden was upon the State to show bеyond a reasonable doubt that the girl whose death-was alleged to have been caused by the acсused was “pregnant with child,”, and that this unborn сhild was “ so far developed as to be quick —• so far developed as to move or stir in the mother’s womb.” The оnly evidence in regard to this is that of thе physician who made a post-mоrtem examination, and who swore: the deceased “ was pregnant to the best of my opinion, based on that examination, the foetus was, I would sаy, about four months of pregnancy.” This falls far short of proof that the unborn child was “quick —was so far developеd as to move or stir in the mother’s womb.” As thе proof fails to support this necessary and vital allegation in the indictment, the verdict of guilty was erroneous, and the judgment must be
Reversed.
Broyles, G. J., and Luke, J., concur.