#### STATE v. MELTON BAKER.

(Filed 13 October, 1937.)

1. Abortion § 8 — Evidence held sufficient for jury on issue of defendant’s guilt of advising and procuring criminal abortion.

■Tbe evidence favorable to tbe State tended to show that defendant bad been friendly with deceased and bad visited ber frequently for eighteen months prior to ber fatal illness, that she left ber mother’s home with defendant, about twelve noon one Sunday, in apparently good health, that defendant returned her to her mother’s home early the' following Monday morning in bad physical condition, that the abortion took place during that time, and that it caused peritonitis resulting- in death. *Held:*The evidence, although contradicted in material aspects by defendant’s evidence, was sufficient to show facts from which the jury could reasonably infer that defendant willfully and feloniously advised and procured the commission of a criminal abortion, and defendant’s motion to nonsuit was properly overruled.

2. Criminal Law § 52b—

Evidence which tends to prove the fact in issue, or which conduces to that conclusion as a fairly logical and legitimate deduction, and which raises more than a mere suspicion or conjecture of guilt, is sufficient to be submitted to the jury, it being for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt.

*2343. Criminal Law § 53f—

A misstatement by tbe court of the testimony of a witness must be called to his attention in apt time to afford opportunity for correction in order for an exception based thereon to be considered on appeal.

Barnhill, J., took no part in the consideration or decision of this ease.

Appeal by defendant from *Frizzelle, J.,*at March Term, 1937, of Nash. No error.

Tbe defendant was tried on an indictment in wbicb it was alleged that “Melton Baker, late of tbe county of Nasb, on tbe.day of June, 1936, with force and arms, at and in tbe county aforesaid, willfully and feloniously did advise and procure one Madell Williams, then pregnant and quick with child, to take medicine, drugs, and other substances, and to use and employ, and to have used and employed certain instruments and other means with intent thereby to destroy such child, such not being necessary to preserve the life of the said Madell Williams, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”

There was a verdict of guilty.

From judgment that he be confined in the State’s Prison for a term of not less than three or more than five years, the defendant appealed to the Supreme Court, assigning errors in the trial.

*Attorney-General Seawell and Assistant Attorney-General McMullan for the Slate.*

*T. T. Thorne and T. A. Burgess for defendant.*

CONNOR, J.

Madell Williams died in a hospital in the city of Rocky Mount, N. 0., on 1 July, 1936.

At the trial of this action there was evidence for the State tending to show that her death was the result of peritonitis caused by a criminal abortion, which was committed some time between 12 o’clock noon on Sunday, 7 June, 1936, and the early morning of Monday, 8 June, 1936.

There was evidence for the State further tending to show that the deceased, Madell Williams, left her mother’s home in Nash County about 12 o’clock noon on Sunday, 7 June, 1936, in an automobile with the defendant Melton Baker, who had called for her there; that at the time she left her mother’s home, with the defendant, the deceased was apparently in good health; that when she returned to her mother’s home with the defendant, early Monday morning, she was in bad physical condition, and immediately went to bed; and that she remained in bed for about a week, at her mother’s home, and then, upon the advice of a physician, was taken to the hospital at Rocky Mount, where she remained until her death.

*235Tbe evidence for tbe State further tended to sbow tbat on tbe day after tbe deceased was taken to tbe hospital, her mother went to see tbe defendant, who lived a short distance from her home, and who bad been visiting tbe deceased for about 18 months prior to her death; tbat at tbe request of tbe mother of tbe deceased, tbe defendant went at once to tbe hospital in Eocky Mount, and there saw and talked with tbe deceased ; and tbat tbe defendant agreed to pay and did pay for tbe medical service and hospital expenses rendered to and incurred by tbe deceased.

Tbe defendant denied tbat be bad advised or procured tbe commission of an abortion upon tbe deceased, or tbat be was responsible for her condition. He admitted tbat be bad visited tbe deceased frequently prior to her illness, and testified tbat bis relations with her were at least friendly. He further admitted tbat be paid her bill for medical services and hospital expenses, and testified tbat be did so because of bis friendship for her and her mother.

Evidence for tbe defendant tended to show tbat be did not take tbe deceased from her mother’s home, in an automobile, on Sunday, 7 June, 1936, and tbat be was not with her at any time during said day away from her mother’s home.

Tbe evidence for tbe State was sufficient to sbow facts from which tbe jury could reasonably infer tbat tbe defendant willfully and feloniously advised and procured tbe commission of a criminal abortion upon Madell Williams, and was for tbat reason properly submitted, together with tbe evidence for tbe defendant, to tbe jury. There was no error in tbe refusal of tbe trial court to allow defendant’s motion at tbe close of all tbe evidence for judgment as of nonsuit.

In *S. v. McLeod,*198 N. C., 649, 152 S. E., 895, it is said: “Tbe general rule is, tbat if there is any evidence tending to prove tbe fact in issue, or wbieb reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely'such as raises a suspicion or conjecture in regard to it, tbe case should be submitted to tbe jury; otherwise not, for short of this, tbe judge should direct a nonsuit, or an acquittal on a criminal prosecution. *S. v. Vinson,*63 N. C., 335. Eut if tbe evidence warrant a reasonable inference of tbe fact in issue, it is for tbe jury to say whether they are convinced beyond a reasonable doubt of such fact, tbe fact of guilt. *S. v. Blackwelder,*182 N. C., 899, 109 S. E., 644.”

A careful examination of tbe record in this appeal fails to disclose any error in tbe trial.

If, as contended by tbe defendant, tbe judge, in response to questions of jurors, inadvertently misstated the testimony of certain witnesses for tbe State, tbe defendant should have called such misstatement to tbe attention of tbe judge, before the jury retired. . In such case, tbe judge *236would bave bad an opportunity to correct bis alleged misstatement. A defendant cannot rely upon a general exception to an inadvertent misstatement by tbe judge of tbe testimony of a witness where, as in tbe instant case, tbe ground for sucb exception was not brought to tbe attention of tbe judge before tbe case was submitted to tbe jury. See *S. v. Sterling,*200 N. C., 18, 156 S. E., 96.

Tbe judgment is affirmed.

No error.

BaRNHIll, J., took no part in tbe consideration or decision of this case.