State v. Crews
| Citation | 38 S.E. 293,128 N.C. 581 |
| Parties | STATE . v. CREWS. |
| Decision Date | 09 April 1901 |
| Court | United States State Supreme Court of North Carolina |
INDICTMENT—ABORTION—OVERT ACTS-NOXIOUS DRUGS—INSTRUCTIONS.
1. An indictment under Code, § 976, denouncing "advising or procuring" a woman to take a drug to produce a miscarriage, need not charge the overt acts committed, it being sufficient to follow the language of the statute, since such acts constitute the offense denounced, and not an attempt to commit some other crime.
2. Under Code, § 975, denouncing the offense of "advising and procuring" a woman to take any drug "with intent to procure her miscarriage, " it is not necessary to charge or prove that accused "procured" the drug.
3. The word "noxious" in an indictment under this section is surplusage, the essential ingredient being the "intent" with which the drug is used, and its nature being material only as throwing light on the intent.
4. The court need not give a prayer in the very words asked, it being sufficient to give it substantially as asked.
Appeal from superior court, Forsyth county; Timberlake, Judge.
J. C. Crews was convicted of a crime, and he appeals. Affirmed.
Swink & Swink and W. O. Cox, for appellant.
The Attorney General, for the State.
The motion to quash was properly overruled. The indictment, exclusive of the merely formal parts, charges that the defendant "did unlawfully, willfully, and feloniously advise and procure a certain woman, called 'Florence Kiger, ' to take a certain noxious drug, called 'spirits of turpentine, ' with intent thereby to procure the miscarriage of her, the said Florence Kiger, she being at the time pregnant." This substantially follows the language of Code, § 976. This Is not an attempt to commit another crime, In which case the overt act must be charged which might result in such crime (State v. Colvin, 90 N. C. 717), but here the act charged is the offense itself, which is denounced by the statute.
The demurrer to the evidence was properly overruled. It was not in evidence that defendant procured the drug for the woman, nor was It necessary to so charge. The words "advise and procure" the woman to take the drug means that he not merely "advised" her to take it (which, standing alone, is not made indictable in this section, though It is in section 975), but that he also "procured her" (i. e. prevailed upon her, induced her) to act upon such advice, "with intent to procure her miscarriage." There was also evidence sufficient to go to the jury that spirits of turpentine was noxious when used internally for this purpose; but, if it had not been, the Word "noxious, " though used in indictments for this offense at common law (State v. Slagle, 82 N. C. 653), Is omitted in the statute,...
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