The defendant offered no testimony in defense. But the nurse who acted as an attendant in his office did testify in behalf of the State. Her testimony and that of the prosecutrix was amply sufficient to repel а motion to dismiss under O. S., 4643, and to require the determination of the issue of guilt or innocence by the jury.
The prоsecutrix testified that she went to see the defendant to obtain ■ his services and “I told him Mrs. Haifle told me about him, the operation he gave. She had told me about this operation he gave.” To her statements as to what she told him the defendant excepted and moved to strike. The exceptiоn is bottomed upon the assumption that this was hearsay testimony. It cannot be sustained.
This was a statement made to the defendant in explanation of the visit by prosecutrix. Its probative force does not depend, in whole or in part, upon the competency and credibility of any person оther than the witness.
S. v. Green,
*448 Tbe State examined Dr. A. H. Elliott, Health Officer of New Hаnover County, who saw the body of the child after birth. During his examination he was asked certain hypothetical questions, to which defendant excepted.
The hypothetical question answered by the witness сlearly assumed the facts and circumstances surrounding the treatment rendered prose-cutrix by defendant and the subsequent premature birth relied on by the State to establish the crime charged. It combinеd substantially all the facts about which evidence was offered, and it was sufficiently explicit for the witness to give an intelligent and safe opinion. The witness drew no inference from the testimony. He merely expressed his professional opinion upon an assumed finding of facts, and the facts assumed were supported by testimony previously offered. It related to matter requiring expert skill or knowledge in the medical field about which a person of ordinary experience would not be capable of forming a satisfactory conclusion unaided by expert information from one learned in thе medical profession.
Pigford v. R. R.,
Defendant likewise makes broadside exception to the charge fоr that it fails “to declare and explain the law arising from the facts.” In his brief under this assignment he contends thаt the court failed to charge on the cláuse “unless the same shall be necessary to presеrve the life of the mother.” Apparently this provision of the statute constitutes an exceptivе proviso, of which the defendant must take advantage by way of defense.
S. v. Connor,
*449 Tbe jury returned a general verdict of guilty. Upon being polled at tbe request of tbe defendаnt, eaeb juror stated tbat be found tbe defendant guilty on tbe first count. Eleven said tbey did not consider tbe sеcond count. One stated, “I understood it took tbe second count in consideration if we all found bim guilty оn tbe first count.” Whereupon, tbe verdict of guilty on tbe first count was entered, and tbe court directed tbe jury to return to tbeir room and reach a verdict on tbe second count. Tbey then, after further delibеration, returned for tbeir verdict on tbe second count “not guilty on tbe second count.” Tbe recоrd fails to disclose any exception to this proceeding entered at tbe time. But tbe defendаnt, after tbe rendition of tbe verdict, moved in arrest of judgment. This motion must be denied.
A motion in arrest of judgment must be based on some matter which appears, or for tbe omission of some matter which ought to аppear, on tbe face of tbe record, creating a vital defect in some phase of tbe proceeding. S
. v. McKnight,
Here no defect appears. A verdict of guilty was rendered. Upon being polled, tbe jurors, each for himself, stated tbat it related to tbe first count. It was so entered. As to tbat tbe record is clear, and it was upon this verdict tbat judgment was pronounced. Even if we concede — and we do not — that tbe further proceedings in respect to tbe second count werе irregular, tbe verdict on tbat count was “not guilty.” It follows tbat tbe defendant has not been prejudiced thereby.
Tbe other assignments of error not specifically discussed are untenable.
In tbe trial below we find •
No error.