State v. . Jordon

Barnhill, J. By tbe enactment of Chap. 351, P. L. 1881, tbe Legislature created two separate criminal offenses. Tbe first, Sec. 1, now G. S. 14-44, is designed to protect tbe life of a child in venire sa mere and makes it unlawful to prescribe or administer drugs to or perform an operation upon a “woman, either pregnant or quick with child,” with intent thereby to destroy said child. Tbe second, Sec. 2, now G. S. 14-45, condemns the administration of drugs to or performance of an operation upon a “pregnant woman . . . with intent thereby 'to procure a miscarriage of such woman, or to injure or destroy such woman,” and is primarily for tbe protection of tbe woman. Here tbe bill of indictment contains no allegation that tbe drug was prescribed with intent to procure a miscarriage or to injure or destroy tbe prosecutrix. Hence tbe court below correctly ruled that tbe prosecution is under G. S. 14-44. So then tbe one question posed for decision is this: Is tbe evidence offered sufficient to Sustain a conviction under G. S. 14-44 ? Tbe answer depends upon tbe meaning of tbe term “either pregnant or quick with child” used in tbe statute and in tbe bill of indictment. Broadly speaking, a woman is “pregnant” from tbe moment of conception until tbe time tbe impregnated ovum, embryo, fetus, or child is discharged from tbe uterus. This, tbe attorney-general contends, is tbe meaning of the word as used in tbe statute. On tbe other band, tbe defendant insists that “pregnant or quick” is used as one term or expression to qualify, limit, or define “with child” and thus confines tbe period of pregnancy to which tbe statute relates to tbe latter half of tbe term of pregnancy during which tbe child is quick. Concede, arguendo, that either construction may be permissible. Even so, tbe rule of strict construction applicable to penal statutes requires tbe adoption of tbe latter. Furthermore, this is tbe more reasonable conclusion. If “pregnant” is used in its broadest sense, then “quick with child” adds nothing to tbe statute. Instead, it constitutes tbe injection of superfluous and meaningless language in tbe law which tends only to confuse. It would likewise compel us to conclude that tbe Legislature made it a crime to administer drugs, etc., with tbe intent to destroy a child which bad not yet come into being within tbe “intent” provision of tbe statute. Tbe very purpose of tbe statute is to protect tbe child in ventre sa mere after it has reached tbe stage of development at which it gives evidence *581 of independent life. And tbe sine qua, non of the offense is the intent to destroy this child. We so held in S. v. Forte, 222 N. C., 537, 23 S. E. (2d), 842, where Winborne, J., speaking for the Court, says: . . there is no evidence of a quickening of the child, proof of which is required when the State proceeds under the provisions of C. S. 4226 (now G. S. 14-44), as it does in the bill of indictment under which defendant stands charged.” Therefore, we conclude that “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.” The evidence offered tends to show that the medicine was prescribed or administered, if at all, within 30 days after conception. There is no evidence prosecutrix was then “quick with child.” Indeed, in the course of nature, she could not have been. Hence, 3. v. Forte, supra, is controlling. The judgment below is Eeversed.