State v. . ForteState v. . Forte
- Reporters:
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- Before:
- Winborne
Dеfendant logically and convincingly presses for error in the trial below the denial of his motion for judgment as of nonsuit upon all the evidence taken in the light most favorable to the State, for thаt there is a fatal variance between the offense contained in the bill of indictment and thе proof offered. S. v. Gibson, 169 N. C., 318, 85 S. E., 7; S. v. Corpening, 191 N. C., 751, 133 S. E., 14; S. v. Dowless, 217 N. C., 589, 9 S. E. (2d), 18. The bill charges defendant with performing an operation upon “a wоman quick with child” with intent thereby to destroy the child. C. S., 4226. The proof tends to show that the defendant performed an operation upon a pregnant woman, C. S., 4227, but it fails to show an operation upоn a woman quick with child as charged.
In this State there are two statutes pertaining to abortion, C. S., 4226, аnd C. S., 4227. In pertinent part section 4226 makes it unlawful to administer drugs to or perform an operation upon a woman “either pregnant or quick with child . . . with intent thereby to destroy such child.” And section 4227 makes it unlаwful to administer ‘drugs to or to perform an operation upon “a pregnant woman . . . with intent thereby to procure the miscarriage of such woman, or to injure or destroy such woman.” The first relаtes to the destruction of the child, and the second, to miscarriage of, or to injury or destructiоn of the woman. Greater punishment is prescribed for a violation of the provisions of C. S., 4226, than for a violation of those of C. S., 4227. Manifestly, the Legislature intended to declare two separate and distinct offenses.
The question then arises as to how far the pregnancy shall be advanced before the child is capable of being destroyed. The general rule is that the child with which thе woman is pregnant must be so far advanced as to be regarded in law as having a separаte existence — a life capable of being destroyed.
*539 While, for many purposes, a child in ventre sa mere is supposed in law to be born, “lifе,” as stated Blackstone, “begins in contemplation of law .as soon as an infant is able to stir in thе mother’s womb.” 1 Bl. Com., 129; Commonwealth v. Parker (Mass.), 9 Metcalf, 263; S. v. Cooper, 22 N. J. L., 52, 51 Am. Dec., 248; Evans v. The People, 49 N. Y., 86; Foster v. State (Wis.), 196 N. W., 233.
In Commonwealth v. Parker, supra, it is said: “It was only considered by the ancient common law that the child had a seрarate and distinct existence when the embryo had advanced to that degree of maturity designated by the term ‘quick with child,’ ” and, further, “that a woman is not considered to be quick with child until she has herself fеlt the child alive and quick within her.”
In S. v. Cooper, supra, the principle is stated in this language: “In contemplation of law lifе commences at the moment of quickening, at that moment when the embryo gives that first physical рroof of life, no matter when it first received it.”
In the Evans case, supra, the Court said: “It was error to charge that the deаth of a child could be caused or produced before it had given evidence of life, had become ‘quick’ in the womb.”
And in Foster v. State, supra, the Supreme Court of Wisconsin, referring to a statute in which the offensе of destroying a child, with which a woman is pregnant, is declared to be manslaughter, and otherwise similar to our statute, C. S., 4226, states: “Neither in popular nor in scientific language is the embryo in the early stages called a human being. Popularly it is regarded as such for some purposes, only after it has become ‘quick,’ which does not occur until four or five months of pregnancy have elaрsed. ... It is obvious that no death of a child can be produced where there is no living child. Sec. 4352 requires the existence of a living child and the causing of its death, or that of the mother, before the offense there defined is committed. If pregnancy has not advanced sufficiently so that therе is a living child — that is, a quick child — then felonious destruction of the fetus constitutes a miscarriage only.” Webster defines “quickening” as : “The first movement of the fetus in the uterus felt by the mother, occurring usually about the middle of the term of pregnancy. A popular supposition ascribes it to the acquiring of independent life by the fetus.” And in Black’s Law Dictionary, it is stated that in medical jurisprudence “quickening” is “the first mоtion of the fetus in the womb felt by the mother, occurring usually about the middle of the term of pregnancy.” And it is a matter of common knowledge that the term of pregnancy is ten lunar months, or 280 days.
Thus, apрlying the above principles to the case in hand, evidence for the State tends to show thаt the pregnancy of Elmer Lee McClure began *540 in January, 1942, and the operation was on 28 March, 1942, a period much shorter than half the term of pregnancy, and there is no evidence of a quickening of the child, proof of which is required when the State proceeds under the provisiоns of C. S., 4226, as it does in the bill of indictment under which defendant stands charged. The proof does not cоnform to the allegation.
In the criminal law it is elementary that defendant must be. convicted, if at аll, of the particular offense alleged in the bill of indictment. The evidence must correspоnd with the charge and sustain it, at least in substance, before there can be a conviction.
For reasons stated defendant’s motion for judgment as of nonsuit should have been granted. Therefore, the judgment below is
Reversed.