Appellant’s exception to tbe denial of bis motion for judgment as in case of nonsuit at the close of all tbe evidence is well taken, for that there is a fatal variance between the offense charged in tbe bill under which defendant stands indicted, and tbe proof offered. S. v. Forte, 222 N.C. 537, 23 S.E. 2d 842, and cases cited. See also S. v. Jordon, 227 N.C. 579, 42 S.E. 2d 674. These decisions were by unanimous Court.
Tbe bill of indictment against defendant is framed in accordance with tbe provisions of G.S. 14-44, formerly C.S. 4226, that is, that defendant advised and procured a certain female person, who was pregnant with child, to take certain medicine, drug or other substance “with intent *383thereby to destroy such child,” etc. But the proof, taken in light most favorable to the State, fails to show that at the time defendant so advised and procured the woman to take the medicine, drug or other substance, she was “pregnant or quick with child” within the meaning of G.S. 14-44, as interpreted by this Court in S. v. Forte, supra, and S. v. Jordon, supra, which is an essential element in the offense to which G.S.. 14-44 relates.
Adverting to the decisions in those cases, it is seen that in this State there are two statutes pertaining to abortion, G.S. 14-44, formerly C.S. 4226, and G.S. 14-45, formerly C.S. 422*7. The distinction between the offenses to which these two statutes relate is pointed- out in this manner: In pertinent part G.S. 14-44, formerly C.S. 4226, makes it unlawful for any person to administer drugs to a woman “either pregnant or quick with child . . . with intent thereby to destroy such child” when it is not necessary to do so to preserve the life of the mother. On the other hand, in pertinent part G.S. 14-45, formerly C.S. 4227, makes it unlawful for any person to advise and procure a pregnant woman to take medicine “with intent thereby to procure the miscarriage of ... or to injure or destroy such woman.” That is, the first G.S. 14-44, formerly C.S. 4226, relates to the destruction of the child, and the second, G.S. 14-45, formerly C.S. 4227, to the miscarriage of, or to the injury or destruction of the woman, — manifestly two separate and distinct offenses.
Moreover, as to how far the pregnancy shall have advanced before the child is capable of being destroyed, it is held in S. v. Forte, supra, that the general rule is that the child with which the woman is pregnant must be so far advanced as to be regarded in law as having a separate existence, —a life capable of being destroyed. “Life” as stated by Blackstone, “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” 1 Bl. Com. 129. This ordinarily does not occur until four or five months of pregnancy have elapsed. If pregnancy has not advanced sufficiently so that there is a living child, that is, á quick child, then the felonious destruction of the fetus would not constitute a destruction of the child. Indeed, in S. v. Jordon, supra, it is said that the words “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.”
Applying these principles to the case in band, the evidence shown in the record on this appeal, taken in the light most favorable to the State, fails to show that at the time defendant advised and procured medicine for the pregnant woman to take, and at the time he took her to the doctor in Lenoir where she was given medicine and shots with hypodermic needle, her pregnancy had advanced to that stage when the child is capable of being destroyed. In this connection the visit to the doctor in Hickory is not of probative value since the purpose of it was in vain.
*384Hence, tbe evidence fails to make out a case for the jury on the charge contained in the present bill of indictment.
The judgment below is
Reversed.
Seawell, J., dissents. '