Fretwell v. State

67 S.W. 1021, 43 Tex. Crim. 501, 1902 Tex. Crim. App. LEXIS 35

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 1902
• Docket: No. 2382.
• Status: Published

Opinions

HEHDERSOH, Judge.

Appellant was convicted of an attempt to produce an abortion, and his punishment assessed at a fine of $150.

The State was permitted to prove, over appellant’s objections, by prosecutrix Lucy Godsey, that defendant was the father of her unborn child y that he had had sexual intercourse with her and had thereby impregnated her. This was objected to by appellant on the ground that it was immaterial. Aside from the fact that the ground of objection is too general, it occurs to us that the testimony was material, as bearing on the question of motive. If appellant was instrumental in impregnating witness Lucy Godsey, it would afford a very strong inducement for him to produce an abortion on her. We think the testimony was relevant and material.-

The State proved by the same witness, Lucy Godsey, that the attorneys representing the State had told her, “to only swear to the truth.” The ground of objection stated to this testimony was that the same was not in rebuttal of anything asked by defendant, he not having inquired into any conversation had between witness and State’s counsel. It has frequently been held by this court that a ground of objection stated is not a certificate by the judge to the effect that the fact existed which afforded the ground of objection. However, the bill further shows that defendant’s counsel had previously asked said witness, “if the attorneys representing the State had not been to see her and talked with her about her evidence, and made an agreement to dismiss her adultery case if she would testify against defendant.” This evidently involved a conversation between her and said attorneys, and the conversation involved an. agreement to dismiss her adultery case if she would testify against defendant. This by itself would suggest that she agreed to testify against defendant regardless of whether such testimony was true or false. How, we think it could be explained that the agreement was predicated on her telling the truth as against defendant, and that no suggestion was made that she would falsify in order to get the case against her for adultery dismissed.

Bill number 3 shows that on the cross-examination of this witness Lucy Godsey, after she had told how she came into possession of the drug in question, counsel for defendant asked her, “if she had not made a statement to Mr. Lea (one of the attorneys^ for the defendant) as to how she came into possession of the medicine in question, and if her statement so made was not entirely different from what she testified on the stand.” The State objected to said question for the reason, that at the time witness made the statement to said attorney he was her attorney, and that whatever she may have told him was a privileged communication. The court sustained the objection. The bill shows that she would have answered, had she been permitted, “that she told said attorney that she knew nothing about the way and manner in which her mother came into possesion of the drug in question; that the first she knew of said drug her mother gave the same to her, and told her how to take it; that she did not know how or from whom her mother got it, and if Fretwell had anything to do with it she knew nothing of it.” The court, explaining this bill, puts his exclusion on the ground that it was a privileged communication between said witness and her attorney Lea, and that she could answer the same or not as she pleased, and the witness refused to answer the same. The bill does not show how the relation of attorney and client existed between said witness and Lea. If we were to indulge a supposition in this matter, he may have been her attorney in the adultery case. But it seems that there was some arrangement to dispose of that case on her agreeing to testify in this case and tell the truth as to the same. She was in no danger, so far as that case was concerned, on her compliance with that agreement; and we fail to see how that objection was tenable. However, the bill is defective in not stating what her testimony was as delivered on this trial, and consequently we can not see how the testimony produced would be material in contradiction or impeachment of said witness. We only know from the bill that appellant would have proved by her that she got the ergot from her mother, and that she did not know how her mother came into possession of said ergot. It is stated that she testified differently while on the stand, but in what respect is not made manifest. So it is not in a shape to be revised. The same observations here made are applicable to the ensuing bill.

The State was permitted to prove by Birchfield that he had a conversation with defendant some time in August, 1901, in which defendant asked witness, “why he did not fly at Lucy Godsey.” Witness replied, “that he did not want to, as he thought she was pregnant.” Defendant replied, “that he did not think so, but if she was it was not much longer than his forefinger; that if any of his friends got into trouble with said girl he would help them out.” The State also proved by Chapman that he had a conversation with defendant about the 15th of July, 1901, “and that in said conversation defendant told him that Lucy Godsey was on it, and that if he would go up there he (defendant) would put witness onto it, and help him ‘get some.’ ” This was objected to on the ground that the same did not throw any light on the transaction under investigation, and could serve no other purpose than to prejudice the minds of the jury against defendant. This was a conversation between defendant and these witnesses in regard to prosecutrix, Lucy Godsey, and con- corning her pregnancy, and also concerning her virtue. With reference to the feature of pregnancy, as stated before, it occurs to us that it was a material fact in the case; and to show appellant’s knowledge thereof furnished the motive for the abortion. Furthermore, his inclination to have another person copulate with her, and that person’s refusal to do so, would tend to show that he himself was copulating with her, and if he. could get some one else' to do the same, it would enable him to shift the responsibility of her pregnancy. Under the circumstances of this ease we think it was pertinent to show the facts stated in this bill, as furnishing a motive on the part of appellant to produce an abortion on prosecutrix. The facts are relevant, not only as bearing directly on the main issue, but as proving collateral issues which would have a bearing on the main issue, and tfius shed light thereon.

Appellant objected to the hypothetical case put by the State to the witnesses Dr. T. J. Murray and Dr. Scott Milam. The hypothetical case is stated in the bill; the objection urged thereto is,^because said hypothetical case put to the witness by the State did not correctly detail the facts and circumstances of the transaction, as testified by Lucy Godsey, the woman upon whom the attempted abortion was made. The facts testified by said witness as constituting the hypothetical case are not stated; consequently we are not advised that the hypothetical case put to the witness did not embrace all the material facts. But if it did not, as held in Burt v. State, 38 Texas Criminal Reports, 397, in the absence of a showing that appellant was denied the right, on cross-examination, to put all the material facts in the hypothetical case, this would not afford a ground for reversal.

Appellant objects to certain charges of the court on the ground that the same were charges on the weight of evidence. As we regard the charges, the part objected to was merely a statement to the jury of what was contained in the information. 3STor do we think there was any error in quoting the statute on which this prosecution was based, as it was correcty quoted. In another portion of the charge, the law was properly applied to the facts, and the same was not on the weight of the testimony.

The objections urged to the county attorney’s argument show that he used language that was hardly justified by the facts proven, but it does not occur to us that such argument was obviously calculated to prejudice appellant, and no charge was asked expunging the same from the consideration of the jury. The reading of authorities and discussion of the same before the court, in the presence of the jury, is greatly in the discretion of the trial judge, and unless an obvious abuse of the same has been shown, to the prejudice of appellant, the case will not be reversed on this account. The bill presenting this matter does not show such prejudice.

Appellant insists that the testimony fails to support the verdict, because the evidence does not show that ergot, which the testimony shows was administered, was calculated to produce an abortion. In this con-. nection it is strenuously insisted that the testimony shows that ergot is not an abortifacient. The most that can be said in this regard is, that according to the old adage, “the doctors disagreed;” those for the State testifying that fluid extract of ergot is calculated to produce an abortion, and if the same had been taken in the manner prescribed by appellant, it would likely have produced an abortion. The natural effect, as stated by said physicians, is to make the patient sick at her stomach .and cause her to vomit, etc. Her testimony shows that it did have this effect upon her. She further testified, that she did not take it as directed, which was to take a teaspoonful of the medicine every three hours until the bottle was exhausted. This would have exhausted the bottle in about three days, whereas, according to the way she took it, it took her about ten days to exhaust the bottle. The bottle contained three ounces. However, the physicians for appellant testified that ergot is not an abortifacient. They testified, also, that said ergot taken as related by the witness,—that is, the three ounces, taking four doses the first day, and then three doses each day during the other nine days, as testified by said witness,—would not be calculated to produce an abortion. But one of them states, “If same had been taken as directed, that is, a teaspoonful every three hours until she had taken the three ounces, it might produce an abortion, but he did not think it would be calculated to do so; that it was possible that it might, but the probabilities were that it would not.” Dr. Mann, in his work of Forensic Medicine and Toxicology, pages 122 and 123, concedes that ergot is a drug which had the most claim to be regarded as an ecbolic; but he seems to think that its efficiency in producing an abortion is due to the general toxic effects produced by its use. The general effect of the drug is to produce a contraction of the uterus; and he insists that the experience of most of obstetricians corroborates the proposition that ergot in nonpoisonous doses does not possess the power of developing uterine action in the quiescent gravid state, in the absence of predisposing conditions. He relates, however, several instances in which abortions were produced by ergot when administered in toxic doses; that is, doses calculated to poison a patient. Richeter reports the case of a girl six or seven months pregnant, who took from two to four ounces. She suffered from the symptoms of acute ergot poisoning,-—quick pulse, thirst, pain in, the stomach and abdomen, stoppage of the urine, great restlessness,—and half an hour after gave birth to a dead child, and died from profuse hemorrhage. Tardule reports the case of a woman four months pregnant, who aborted in consequence of taking ergot, and died from peritonitis twenty-four hours afterwards. And in another case, reported by Otto, death took place shortly after the expulsion of an embryo five inches in length. Witthaus & Becker in their work on Forensic Medicine and Toxicology, volume 2, pages 120 and 122, are disposed to take the same general view of the effect of ergot as an abortifacient, that is, its efficiency depends on its poisonous effects; that ergot, like most ecbolics, is not certain in its effects, but they concede that ergot is the only drug with true ecbolic power, and an abortion may be caused by it without poisoning the patient. We quote from this work, as follows: “When the court asks an opinion as to the abortive power of the drug, it is not needful to establish its specific action on the uterus, or its certainty as an abortifacient. It is sufficient to show it is specially liable to set up constitutional disturbances which are apt to terminate in abortion. If such a drug is given-to a pregnant woman, but in too small doses to cause abortion, or if it fails because of the peculiar strength and resisting power of the woman, the charge still holds. But if a manifestly inert or unsuitable drug is employed, the charge would not hold good, though there might be a point of law as to the intentions.” This expresses our view in better phraseology than we can command. No drug can be considered as a specific abortifacient. Ergot comes nearer being certain in its effect than others. Its tendency is to contract the uterus. If small doses are given, and the subject is healthy, it is not likely to produce an abortion. If large doses are given, and the medicine has a toxic effect, it is likely to produce an abortion. The doses shown to have been prescribed by appellant, that is, an ounce per day, according to the testimony of the State’s experts, would likely have produced an abortion. The doses taken by prosecutrix were much smaller and extended over three times the period prescribed by appellant. Though taken in small quantities, according to her testimony, it had a decided effect on her. Of course, we are unable to determine absolutely that the ergot, if taken as prescribed would have produced an abortion, but unquestionably the testimony for the State indicates this would have been its effect; and the books, it occurs to us, support this contention. It was given by appellant for that purpose, and we think the evidence fully supports the verdict. The judgment is affirmed.

Affirmed.