#### STATE v. MAYFORD JORDON.

(Filed 5 June, 1947.)

1. Abortion § 1—

G. S., 14-44, and G. S., 14-45, creates separate and distinct offenses, the first statute being designed to protect the life of a child *in ventre sa mere,*and the second being primarily for the protection of the woman.

2. Same—

A prosecution under an indictment charging that defendant prescribed certain drugs for a pregnant woman with intent to destroy the child, without allegation that the drug was prescribed with intent to procure a miscarriage or to injure or destroy the woman, is a prosecution under G. S., 14-44.

3. Statutes § 11—

Penal statutes must be strictly construed.

4. Abortion § 2—

The words “either pregnant or quick with child” contained in G. S., 1444, mean “pregnant with child that is quick,” since otherwise the words “or quick with child” would be merely confusing surplusage, and since the *sine qua non*of the offense is the intent to destroy the child *in ventre sa mere,*which must be quick before it has independent life.

5. Abortion § 10—

Evidence that defendant, with intent to produce a miscarriage, gave a certain drug to a woman within thirty days after she had conceived, is insufficient to be submitted to the jury in a prosecution under G. S., 14-44, since in such instance the child could not be quick.

Appeal by defendant from *Rousseau, J.,*at December Term, 1946, of Foesyth.

Reversed.

Criminal prosecution under bill of indictment whicb charges that defendant did “unlawfully, wilfully and feloniously prescribe for one Mildred Bennett, she being pregnant, to the knowledge of the said Mayford Jordon, certain medicines, drugs or instrument, with intent thereby to destroy said child, ...”

There were intimate relations between defendant and the prosecutrix on the first and third Sundays in July, 1946. Sometime shortly after 15 August she discovered she was pregnant and so informed the defendant. Thereupon he procured twelve 5-grain capsules of quinine, gave them to her, and told her to take them “and it would destroy the baby.” Later he gave her twelve more capsules. She took four and threw the others away. The medicine did not have the desired effect.

During the progress of the trial the defendant inquired whether the State was proceeding under G. S., 14-44, or 14-45. The court replied it was proceeding under G. S., 14-44. There was a verdict of guilty.

*580Tbe court pronounced judgment and defendant appealed.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*Roy L. Deal and Fred S. Hutchins for defendant, appellant.*

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 *581of 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.