State v. Forte

• Decision Date: 08 January 1943
• Docket Number: 722.
• Citation: 23 S.E.2d 842,222 N.C. 537
• Parties: STATE v. FORTE.
• Court: North Carolina Supreme Court

23 S.E.2d 842

222 N.C. 537

STATE v. FORTE.

No. 722.

Supreme Court of North Carolina

January 8, 1943

Criminal prosecution upon indictment charging defendant with offense of abortion.

The indictment, founded upon provisions of the statute C.S. § 4226, charges that "Dr. A.U. Forte and Albert Clark late of the County of Forsyth, on the 28th day of March, A.D 1942, with force and arms, at and in the county aforesaid unlawfully, willfully and feloniously did minister and prescribe and advise and procure Elmer Lee McClure, a woman quick with child, to take any drug or medicine and did employ, use an instrument or other means with intent thereby to destroy the said child, the same not being necessary to preserve the life of the said Elmer Lee McClure against the form of the statute in such cases made and provided and against the peace and dignity of the State".

Upon the trial in Superior Court evidence for the State tended to show these facts: That Elmer Lee McClure, 15 years of age, as result of sexual relations with Albert Clark, became pregnant in January, 1942; that on March 28, 1942, she and Albert Clark went to office of defendant, Dr. A.U. Forte, who, for an agreed fee, examined her and pronounced her to be pregnant; and that then for a further stipulated fee, Dr. Forte agreed to perform, and did perform an operation upon Elmer Lee McClure, details of which are not essential, as a result of which "a little form of the baby" was discharged the next morning. The evidence for State fails to show a quickening of the child.

On the other hand, defendant, Dr. Forte, having pleaded not guilty, offered evidence tending to show an alibi upon which he relied as a defense. When the State rested its case, defendant Forte moved to dismiss the case by judgment as of nonsuit. C.S. § 4643. The motion was denied and he excepted; and, again, at close of all the evidence, said defendant renewed his motion for judgment as of nonsuit. The motion was denied and he excepted.

Verdict: Guilty.

Judgment: Confinement in the State's Central Prison for a period of not less than two and one half, nor more than five years, and assigned to such labor as provided by law.

Defendant appeals to Supreme Court, and assigns error.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Assts. Attys. Gen., for the State.

Fred S. Hutchins and H. Bryce Parker, both of Winston-Salem, for defendant-appellant.

WINBORNE Justice.

Defendant 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 that there is a fatal variance between the offense contained in the bill of indictment and the proof offered. State v. Gibson, 169 N.C. 318, 85 S.E. 7; State v. Corpening, 191 N.C. 751, 133 S.E. 14; State v. Dowless, 217 N.C. 589, 9 S.E.2d 18. The bill charges defendant with performing an operation upon "a woman 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 upon a woman quick with child as charged.

In this State there are two statutes pertaining to abortion, C.S. § 4226, and 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 unlawful to administer drugs to or to perform an operation upon "any pregnant woman *** with intent thereby to procure the miscarriage of such woman, or to injure or destroy such woman". The first relates to the destruction of the child, and the second to miscarriage of, or to injury or destruction 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 the woman is pregnant must be so far advanced as to be regarded in law as having a separate existence,--a life capable of being destroyed.

While, for many purposes, a child in ventre sa mere is supposed in law to be born, "life" as stated Blackstone "begins in contemplation of law as soon as an infant is able to stir in the mother's womb". 1 Bl.Com. 129; Commonwealth v. Parker, 9 Metc., Mass., 263, 43 Am.Dec. 396; State v. Cooper, 22 N.J.L. 52, 51 Am.Dec. 248; Evans v. People, 49 N.Y. 86; Foster v. State, 182 Wis. 298, 196 N.W. 233.

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