State v. Green

• Decision Date: 04 May 1949
• Docket Number: 292
• Citation: 53 S.E.2d 285,230 N.C. 381
• Parties: STATE v. GREEN.
• Court: North Carolina Supreme Court

53 S.E.2d 285

230 N.C. 381

STATE v. GREEN.

No. 292

Supreme Court of North Carolina

May 4, 1949

Criminal prosecution upon indictment found as a true bill at a regular term of Superior Court convening on 29 November, 1948 charging that 'Edward Green late of the County of Caldwell on the 25th day of August in the year of our Lord one thousand nine hundred and forty eight, with force and arms, at and in the county aforesaid, did unlawfully willfully and feloniously advise and procure one Sybil Winkler, a female person, who was pregnant with child, to take certain medicine, drug or other substance with intent thereby to destroy such child, same not being necessary to preserve the life of the said Sybil Winkler against the form of the statute,' etc.

Defendant upon arraignment, pleaded not guilty.

Upon the trial in Superior Court, the State offered Sybil Winkler as a witness. Her testimony may be summarized as follows That defendant started going with her in May, 1948, and she became pregnant by him on June 14th; that she told defendant of her pregnancy, and he told her that he would get for her something to get rid of the child; that at that time she had passed two or three periods; that he brought to her some medicine, quinine capsules, twice, 12 at a time, from a drug store; that she took all but two; that then defendant took her in his car to a doctor in Lenoir for shots, and said that would get rid of it; that she was given some kind of black pills, 12 in a box; that the doctor gave her a shot in the arm with a hypodermic needle; that she went back to the doctor and he gave her another shot; that after she had taken the medicine and the shots, defendant did not advise her 'any further about how to get rid of the baby'; but that he took her to another doctor in Hickory for an operation and went into the doctor's office with her; that the doctor did not operate--said she 'was too far gone'; that this was about two weeks after she went to the doctor in Lenoir; and that the last time she went to the doctor was in October.

And this witness further testified that June 14th was the correct date 'of her pregnancy'; that she first felt the movement of the child in her body at four months; that the doctor told her that is 'when you are supposed to feel the movement'; that that was after 25 August, 1948, and about two and a half months before the time she was testifying; and that she was then six months pregnant.

And the State offered testimony of other witnesses tending to corroborate that given by Sybil Winkler.

Verdict: Guilty.

Judgment: That defendant be imprisoned in the State Penitentiary at hard labor for not less than two nor more than three years.

Defendant appeals therefrom to Supreme Court, and assigns error.

Harry M. McMullan, Atty. Gen., and T. W. Bruton and John R. Jordan, Jr., Asst. Attys. Gen., for the State.

W. H. Strickland, of Lenoir, for defendant appellant.

WINBORNE Justice.

Appellant's exception to the denial of his motion for judgment as in case of nonsuit at the close of all the evidence is well taken, for that there is a fatal variance between the offense charged in the bill under which defendant stands indicted, and the proof offered. State v. Forte, 222 N.C. 537, 23 S.E.2d 842, and cases cited. See also State v. Jordan, 227 N.C. 579, 42 S.E.2d 674. These decisions were by unanimous Court.

The bill of indictment against defendant is framed in accordance with the provisions of G.S. s 14-44, formerly C.S. s 4226 that is, that defendant advised and procured a certain female person, who was pregnant with...