
    Brown v. The State.
    Argued February 19,
    Decided March 22, 1906.
    Indictment for assault with intent to murder. Before Judge Hammond. Richmond superior court. December 18, 1905.
    Clara Brown was convicted on an indictment under the Penal Code, §81, charging her with assault with intent to murder Maude Jones, a woman pregnant with a child, by using upon her an instrument with intent thereby to destroy the child. At the trial a physician testified, that he attended Maude Jones in her last illness, and that she died of blood poisoning, “caused by the puncturing and tearing of the womb, in an attempt to create an abortion. He first saw the patient Sunday morning, October 15, 1905, and she died on the following Tuesday night or Wednesday morning. It was his medical opinion that the patient had been in a family way about three or four months. She knew of her condition, as he informed her Tuesday morning that he didn’t think he could save her, as her temperature was too high. He also told her the cause of her condition, but she did not say who had done it, nor make any statement about it at all. The use of the instrument that caused the lacerations of the wound was not necessary to preserve the life of the mother, and had not been advised by him nor any two physicians, as far as he knew, and there was no physician other than himself attending her. Iiis opinion as an expert was that the wounds must have been inflicted within two or three days of the time he made the examination, Sunday morning. He told her, at the time of this examination, that an abortion had been attempted, and she denied it. He could not say, from his examination of the wounds, whether they had been self-inflicted or not, but they were in a position where it would have been possible for her to have done it herself.” Lizzie Butler testified, that she lived about four doors from Clara Brown, and that about five weeks before the clay of the trial Maude Jones passed her house and asked where Clara Brown lived, and, when told where Clara lived, Maude went around the corner, in the direction of Clara’s house. (The date of the trial is not given, but the verdict is dated November 3, 1905.) Della Jones, the mother of the deceased, testified, that “in the course of conversation with the defendant she told defendant that her daughter, Maude Jones, just before she died, had charged her (defendant) with attempting the abortion upon her, for which she had given the defendant five dollars.” “I went to her. and told her what I came for. I told her she had brought death in my house; and I said, H want that $5 that Maude paid jura.’ She said, ‘$5? Why, I am got $8 of somebody’s else in here, and if you come here Saturday night’ — I don’t know whether she said she would give it to me Saturday night, or whether it was a man’s money, or what; but I told her my child was dead, and I wanted the money to bury her; and she told me she didn’t do no more work for them down-town niggers; that the last woman she had done work for was Mamie Taylor, and she went off and talked about her, and she didn’t want to do no more work for them. And Maude wasn’t a down-town nigger.” She did not pay back the $5, and she denied that she had clone any work on Maude; she said she had not seen her, and did not know her. “I demanded the $5 time I went in. I was going to ask her before these other women, but she jumped up and ran to her house, and told me to come to her house, and I went with her, and I didn’t hesitate to tell her what she had done. . . She told me to come back Saturday night. Now, what she was going to do, I don’t know. I didn’t care to go back Saturday night. . . She was hollering and going on. . . She was talking very loud.” Matilda Williams testified, that after the death of Maude Jones and before she was buried, she (the witness) went with Maude’s mother to the house of the accused, and that “when Maude’s mother went- down there, she asked Clara for the $5 Maude had paid her, and Clara said Maude didn’t pajr her no $5; and then she told her Maude had told hex she had been down to Clara Brown’s and paid her $5 for the miscarriage of the baby. Clara said Maude hadn’t paid her no $5, — she didn’t know Maude; that the last person she worked for down town was Mary Taylor’s daughter.” The witness did not hear the whole conversation. James R. Stratford testified, that “he worked on the case for the State, and went to the premises of Clara Brown, but found nothing there. He had been informed that he might find something in the yard opposite Maude Jones’, occupied by one Julia Smith, who had not, up to the date of the trial, been in reach of the court, having gone into Carolina somewhere. In this yard he dug up the body of a small infant, interred in a pasteboard shoe-box.” The accused, in her statement to the jury, said that when “this woman” came to her, she (the accused) denied that the $5 had been paid to her, and denied that the daughter had been to her. '“I made answer to her, H haven’t got but $8 in my house, and it belongs to Will Philpot; and if you don’t believe me, that it is his money, you come back here to-night, and I will prove it to you.’ ” The accused said that she refused to pay the $5.
   Fish, C. J.

The evidence was not of such character as to show the guilt of the accused beyond a reasonable doubt, and a new trial should have been granted on this ground.

Judgment reversed.

All the Justices concur.

The motion for a new trial, to the overruling of which the accused excepted, was on the grounds that the verdict was contrary to law and the evidence, and that the court erred in allowing Della Jones to testify to her statement to the accused, that the deceased had charged the accused with having attempted abortion on her.

George T. Jackson, for plaintiff in error.

J. 8. Reynolds, solicitor-general, contra.  