State v. Crews.

Claek, J. The motion to quash was properly overruled. The indictment, exclusive of the merely formal parts, charges that the defendant “did unlawfully, wilfully and feloniously advise 'and procure a certain woman, called Florence Eiger, to talie a certain noxious drug, called spirits of turpentine, with intent thereby to procure the miscarriage of her, the said Florence Eiger, she being at the time pregnant.” This *582 substantially follows tlie language of The Oode, sec. 976. This is not an attempt to oounaniit 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 offence itself, which is denounced by the statute. The demurrer to the evidence was properly overruled. It was not iu 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 lie 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 bad not been, the word “noxious,” though used in 'indictments for this offence at common law (State v. Slagle, 82 N. C., 633), is omitted in the statute which substitutes “intent” as the chief ingredient in the of-fence. Hence, the word “noxious” was mere surplusage, and like the description of the weapon and of the wound and other matter used formerly in indictments for murder, hut which, if now inserted in an indictment for homicide, need not be proven. The first prayer for instruction was substantially given in the charge as sent up. The Court need not give the prayer in the very words asked. Clark’s Code (3d Ed.), page 539, and cases cited. Nor was there any error in charging -the jury “if they believed that the defendant advised and procured Florence Niger to take tnrpieniüine with intent thereby to procure her miscarriage, it made no difference whether it would procure abortion or not, he would be guilty; that is, it made no dif- *583 ferenee whether turpentine was a noxious drug or not, if th'e defendant advised the prosecutrix to take turpentine with intent thereby to procure her miscarriage he would, be guilty.” As -already pointed out, ait common law, the noxious mature of the drug was essential, but under the statute the essential ingredient is the intent with which the “medicine, drug or other thing whatsoever,” is used. The nature of the drug or 'article is -material only as throwing light upon the intent. It is no- defence even if defendant could show that the drug would not in fact canse a miscarriage. State v. Fitzgerald, 49 Iowa, 260; Dougherty v. People, 1 Colo., 514; 2 McLain Cr. Law, Sec. 1148, note 10; 1 Bish. New Cr. Law, 769 (4). The law deems no experiment's in an effort to procure abortion innocent, when the jury is convinced that the drug or other article was used with the criminal intent to procure such, 'attempted abortion. No error was committed by Judge Timberlake in the Su-perito Court in overruling the- exceptions taken at the trial in the Criminal Court. No error.