State v. Hoover, 219

• Decision Date: 16 March 1960
• Docket Number: No. 219,219
• Citation: 252 N.C. 133,113 S.E.2d 281
• Parties: STATE, v. Geneva Phifer HOOVER and Florence Stallworth.
• Court: North Carolina Supreme Court

Page 281

113 S.E.2d 281

252 N.C. 133

STATE, v. Geneva Phifer HOOVER and Florence Stallworth.

No. 219

Supreme Court of North Carolina.

March 16, 1960

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

Allen A. Bailey, Charlotte, for defendant Geneva Phifer Hoover.

Henry E. Fisher, Charlotte, for defendant Florence Stallworth.

Francis M. Fletcher, Jr., Charlotte, for defendants on appeal.

PARKER, Justice.

G.S. § 14-44 and G.S. § 14-45 create two separate and distinct criminal offenses. G.S. § 14-44 makes it unlawful to use or employ any instrument upon a woman, 'either pregnant or quick with child' with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of the mother. This statute is designed to protect the life of a child in ventre sa mere. "Either pregnant or quick with child' as used in G.S. § 14-44, means 'pregnant, i. e., quick with child' or 'pregnant with child that is quick.' ' State v. Jordan, 227 N.C. 579, 42 S.E.2d 674, 675. G.S. § 14-45 condemns the administration of medicine, drugs or anything whatsoever to or the using of any instrument or application upon 'any pregnant woman' with intent thereby to procure the miscarriage of such woman, or to injure or destroy such woman. G.S. § 14-45 relates to the miscarriage of, or to the injury or destruction of a pregnant woman. G.S. § 14-44 provides for a greater punishment than G.S. § 14-45. State v. Forte, 222 N.C. 537, 23 S.E.2d 842; State v. Jordan, supra; State v. Green, 230 N.C. 381, 53 S.E.2d 285.

Defendant Stallworth offered evidence: defendant Hoover did not. Both defendants assign as error the overruling of their motions for judgments of nonsuit made at the close of all the evidence. Defendants filed a joint brief. In their brief they state their 'primary argument on appeal' is that the State's evidence as to the alleged pregnancy of the prosecutrix, Juanita Rozzell, at the time the alleged offense was committed is insufficient to carry the case to the jury.

The State's evidence tends to show the following facts: Juanita Rozzell is 22 years old. She has a four-year-old girl. She and her husband are living apart. Juanita Rozzell was asked on direct examination what was her physical condition on January 16th. She replied: 'I was expecting.' She was then asked what she meant by expecting. She replied: 'I was pregnant. Before January 16th I had missed my monthly period, I was going on the second month.' She testified without objection on cross-examination by defendant Hoover, 'I know I was pregnant. * * * The father of the child I thought I was pregnant with was Robert Falls, he lives in Charlotte.'

Defendants assign as error the denial by the court of their motions to strike out her testimony 'I was expecting,' and 'I was pregnant.' The court properly denied the motions. The evidence was competent. Commonwealth v. Leger, 264 Mass. 217, 162 N.E. 337, 338, was an abortion case. The victim was Anna E. Craham, an unmarried woman, who belived herself pregnant because menstruation had ceased for two preceding periods. The Court said: 'It was competent for Miss Craham to testify that 'she thought she was pregnant."' In State v. Horwitz, 108 Conn. 53, 142 A. 470, the Court held that in a prosecution for abortion, belief of victim on the day of alleged operation that she was pregnant was a relevant circumstance, properly proved by her own testimony. To the same effect: People v. Ames, 151 Cal.App.2d 714, 312 P.2d 1111, certiorari denied 355 U.S. 891, 78 S.Ct. 264, 2 L.Ed.2d 190, which holds no error was committed in permitting evidence of victims that they believed they were pregnant; Holloway v. State, 90 Ga.App. 86, 82 S.E.2d 235; 3 Burdick, Law of Crime, pp. 291-292. See also Commonwealth v. Longwell, 79 Pa.Super. 68; State v. Miller, 90 Kan. 230, 133 P. 878, Ann.Cas.1915B, 818.

About a week before 16 January 1959, Juanita Rozzell went to see the defendant Hoover at the Grill about having an abortion, and to see if she knew anyone who would do it. Defendant Hoover replied she thought she knew some one; that it would cost $75. This conversation was admitted against defendant Hoover alone.

On 16 January 1959, Juanita Rozzell went back to the Grill. She had $85 with her. Defendant Hoover carried Juanita Rozzell to her house on Statesville Avenue. When defendant Hoover went in her house, she made a telephone call, and said 'This is Geneva, O. K.' In a short time defendant Stallworth came in the house.

Juanita Rozzell then testified that the two defendants and she went into a back room, and she testified in detail as to defendant Stallworth inserting long scissorslike instruments into her private parts, and what was done, etc., the sordid details of which we omit, as their recital here would serve no useful purpose. Defendant Hoover was present, assisting. After it was over Juanita Rozzell gave defendant Stallworth $75.

Five or six minutes after Juanita Rozzell got off the bed and put her pants on, policemen came in the house. In the room the policemen found two instruments, one having a small amount of blood on the point of it, a syringe, tubes, etc.

Dr. Joseph B. McCoy, Jr., a medical doctor, and a medical expert in the field of obstetrics and gynecology, on 17 January 1959 examined Juanita Rozzell at the Good Samaritan Hospital. He testified, as a witness for the State, that he found, inter alia, blood in the vagina and 'uterus anterior size of two months pregnancy and firm.' Dr. McCoy testified that, based on his examination of Juanita Rozzell, she was pregnant, in his opinion. He testified on cross-examination that the size of her uterus was the size of two months pregnancy. He further testified on cross-examination: 'The size of the uterus was the size of two months pregnancy. There were no lacerations I could detect. There was no damage to tissue in any way. While it is my opinion the patient was about two months pregnant I could be mistaken in that; it is merely an opinion, based primarily upon the size of the uterus and the color of the cervix. * * * Any number of things can cause an enlargement of the uterus.'

Dr. Richard Dennis Hill, a medical doctor, engaged in the practice of obstetrics and gynecology, and a witness for the State, examined Juanita Rozzell on 17 January 1959. On such examination he found her uterus slightly enlarged, which is 'consistent with about a size of 6 to 8 weeks pregnancy.' Dr. Hill testified that he could not give an opinion as to whether she was pregnant or not. That definite signs of pregnancy are X-ray findings of the fetal skeleton or auscultation of the fetal heart rate, which are usually not seen until the 16th or 18th week of pregnancy, and these were not present.

When defendant Stallworth came out of the Hoover house, she was arrested by policemen, and carried to police headquarters. The policemen then went into the Hoover house. At police headquarters each defendant made a statement in the presence of the other. The substance of defendant Hoover's statement is: Juanita Rozzell came to her, and said she needed some help. Then she asked Juanita what she was talking about, and she replied 'I want an abortion.' She told Juanita she would see what she could do, and to contact her the following Wednesday. Later Juanita called her at the cafe, and asked if she could get it done Friday. Juanita came to the cafe, and she took her to her home on Statesville Avenue. That when they reached there she called Florence Stallworth, that Florence Stallworth came over, and they took Juanita in the back room on the right where Florence Stallworth performed the abortion. That Florence gave her $35 in the hall. The substance of Florence Stallworth's statement is: She was contacted by Geneva Hoover, and told to come to her house. She went to the house. They went into a back room, and she asked Juanita how many months she was pregnant. She replied 'one and a half or two months.' She replied all right, and Juanita got on the bed. Defendant Stallworth told then in detail of putting the instrument into Juanita's vagina, and what she did. That Juanita paid her $75, and she gave Geneva Hoover $35, that when the police came up she was leaving, and they told her to get in their car, and she dropped the money by her car. Neither defendant denied the statement of the other.

An actual miscarriage is not a necessary element of the offense condemned by G.S. § 14-45. 1 Am.Jur., Abortion, Sec. 12.

In a prosecution for a violation of G.S. § 14-45, proof of pregnancy is essential. However, a woman may be pregnant within the meaning of G.S. § 14-45, though the fetus has not quickened. 1 Am.Jur., Abortion, Sec. 16; Annotation: 46 A.L.R.2d pp. 1397-1399, where cases are cited. See State v. Slagle, 83 N.C. 630, as to the common law rule, where this Court held an abortion 'may be committed at any stage of pregnancy.' As to similar holdings as to the common law rule see Annotation 46 A.L.R.2d pp. 1396-7, where cases are cited.

In annotation 16 A.L.R.2d 951, it is said: 'Statutes using the term 'pregnant woman' have been interpreted as meaning pregnancy during any stage, regardless of the vitality of the fetus.'

The courts are in agreement that the element of pregnancy, like other elements of the offense, need not be established conclusively, but only beyond a reasonable doubt. 1 Am.Jur., Abortion, Sec. 47; 1 C.J.S. Abortion § 34; Annotation: 46 A.L.R.2d 1404.

It is our opinion that the State's evidence has legal sufficiency to carry the case to the jury on the second count in the indictment, which charges a violation of G.S. § 14-45, and is legally sufficient to support a verdict of guilty on that count.

The State's evidence does not show a violation of G.S. § 14-44, as charged in the first count in the indictment, for the reason that there is no evidence that at the time of the offense charged Juanita Rozzell was 'quick with child.'

However, as the...