Gray v. State

178 S.W. 337, 77 Tex. Crim. 221, 1915 Tex. Crim. App. LEXIS 46

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 1915
• Docket: No. 3499.
• Status: Published

Opinions

Appellant was indicted, and convicted of abortion. Prior to the Act of March 20, 1907, amending article 1071 (641) of our Penal Code, the offense of abortion, as applicable to this case, was thus defined: If any person shall designedly use toward a pregnant woman with her consent any violence, or means whatever, externally or internally applied and shall thereby procure an abortion, he shall be punished, etc. Said Act of 1907, re-enacted said article, making no change therein applicable hereto, except it added a separate paragraph in these words:

"By the term `abortion' is meant that the life of the fetus or embryo shall be destroyed in the mother's womb, or that a premature birth thereof be caused."

So that the offense applicable herein by said statute, leaving out the unnecessary matters, is in this language: If any person shall designedly use toward a pregnant woman, with her consent, any violence or means whatever, externally or internally applied, and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years. By the term "abortion" is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

The indictment in this case has more than one count. The trial court, however, restricted the case to the second count. After the other necessary averments in every indictment said count is as follows:

That M.E. Gray, on March 12, 1913, "did unlawfully, wilfully and designedly make an assault in and upon the person of one Sadie Moore, a pregnant woman, and did then and there, with the consent of the said Sadie Moore, insert, thrust and force into the private parts and womb of the said Sadie Moore a certain rubber instrument, towit, a catheter, then and there calculated to produce an abortion and miscarriage of her, the said Sadie Moore; and that by the means aforesaid she, the said M.E. Gray, did then and there produce an abortion of the said Sadie Moore of the child wherewith she, the said Sadie Moore, was then and there so pregnant."

Appellant's contention is that this indictment is fatally defective because it fails to allege that by reason of the means applied to said Mrs. Moore "the life of the fetus or embryo in the womb was destroyed, or that a premature birth from the womb was caused."

A careful review of the authorities indicates that at common law an abortion could not be produced upon a woman, unless and until the child was "quick" within her womb. The courts of our various States differ as to this, most of them holding that an abortion can be produced at any time after conception and before the woman was "quick" with child. We, of course, do not know for certain why our Legislature added said clause to article 1071 quoted above, as it did, unless it be for fear that the courts of this State might hold that an abortion could not be produced on a woman, unless she was "quick" with child as contra-distinguished from being pregnant, and the stage of pregnancy only embracing the early stages of the embryo or fetus. As we understand this addition to this article, it was not intended, and should not be construed, to restrict the definition of abortion, but to add to it instead, and to prevent that construction of the article as it formerly existed in the particulars mentioned.

In testing the sufficiency of an indictment under our law we must necessarily be governed largely, if not wholly, by our codes. Of course, there are general principles which are also applicable.

Now let us look to these statutory provisions: Article 451, subdivision 7, Code of Criminal Procedure, in prescribing the requisites of an indictment, says: "The offense must be set forth in plain and intelligible words." Article 453 says: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." These articles were incorporated in our Code when originally enacted in 1856. The tendency of the courts, then, and for some time afterwards, was to construe indictments strictly. So much so that the Legislature by the Act of March 26, 1881, page 60, undertook by legislative enactment to do away with this strict construction and by that Act added, among others, articles 460, 461 and 474. By article 460 it is enacted that an indictment "shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged and enable the court on conviction to pronounce the proper judgment." And then further says certain words in no case are necessary.

Article 461 is: "When a statute creating or defining an offenseuses special or particular terms an indictment on it may use thegeneral terms which in common language embraces the specialterms."

Article 474 is: "Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning or which include the sense of the statutory words."

Tested by these statutes, we think it clear that the indictment in this case is sufficient as drawn, and that it is not fatally defective in that it does not contain the additional averments which appellant contends it should have contained. We are not holding that it may not have been proper to add, under the special facts of this case, what appellant contends for. It may be that that allegation would not have been improper. What we hold is that the indictment, as written, is sufficient. We think the indictment, as written, is unquestionably of that certainty which will enable the accused to plead the judgment herein given upon it in bar of any other prosecution for the same offense. Also that it charges the offense in such ordinary and concise language as to have enabled appellant or any other person of common understanding to know what is meant, and to give her notice of the particular offense with which she was charged and to enable the court to pronounce the proper judgment of conviction.

We also think that the special or particular language defining what the word "abortion" means is clearly embraced in the general terms used in the indictment and that the general terms used embraces the special or particular definition embraced by the addition to the article in the Act of 1907; and that the general words used in the indictment include the special terms in the law added by the Act of 1907 and include the sense of the whole of the statutory words.

We have many statutes prescribing offenses in given words and language and then some words in the statute making the offense, are defined. As we understand, as a rule, it is never necessary in the indictment to allege the offense by defining the meaning of the several words in the statute, although prescribed by the statute itself. Take, for instance, our manslaughter statute (art. 1128, P.C.); it says, "manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law." Then follow articles defining certain words and terms used. Thus, defining what is meant by "under the immediate influence of sudden passion." Then defines "adequate cause" and prescribes some of the things which are adequate cause and some which are not. It has never been held necessary and we think could not be, that an indictment for manslaughter should specifically allege what the terms and words used in the statute mean as defined and described by other provisions.

"Pregnancy is defined with reference to a woman as the state of being with child and is used to designate the condition of a woman from the moment of conception until she has been delivered of the child." 1 Corpus Juris., 312; 1 A. E. Ency. of Law Prac., p. 116. "Pregnancy extends from the whole period from the earliest conception to the actual expulsion of the fetus." State v. Howard, 32 Vt. 380.

In 1 A. E. Ency. of Law Prac., p. 113, it is said: "Abortion is the act of miscarrying or producing young before the actual time and before the fetus is perfectly formed; and to cause or procure an abortion is to cause or procure this premature bringing forth of the fetus. Though the word does not of itself import a crime, and does not always occur in the statutes, yet it has become a term of legal classification and is now generally if not universally used to designate the crime of causing the premature bringing forth of the human fetus, so far as that act is a crime at common law or has been made so by statute."

In 1 Standard Ency. of Proc., p. 94, it is said: "The word `abortion' in common terminology means the premature delivery of a human fetus.

"`By abortion we understand the act of miscarrying, or producing young before the natural time, or before the fetus is perfectly formed. And to cause or produce an abortion is to cause or produce this premature bringing forth of this fetus.'

". . . The crime of abortion under modern statutes is the unlawful act of causing a woman to miscarry or abort, through the use of artificial means."

Appellant next contends that the evidence was insufficient to sustain the verdict in that the evidence fails to show that said Mrs. Moore was pregnant at the time the appellant committed the acts that she was shown to have committed towards her. We have carefully read and studied the statement of facts. Of course, it was necessary for the State to prove that Mrs. Moore was pregnant at the time. The court, in his charge on this point, gave a correct charge on circumstantial evidence and in accordance therewith required the jury to believe specifically that said Mrs. Moore was pregnant at the time, before they could convict and if the jury had a reasonable doubt of it to acquit her. We can see no useful purpose in stating the testimony. In our opinion, it was amply sufficient to meet the requirements of a charge on circumstantial evidence and from it the jury could find, as they did, that Mrs. Moore was pregnant at the time.

Over appellant's objections the court permitted the introduction by the State of the testimony of Mrs. Duke, Mrs. Selby, E.J. Erwin, and W.B. Roddy to facts which would tend to show, and from which the jury were authorized to believe, that the appellant produced abortions on other women, both before and after the acts committed by her upon the said Mrs. Moore.

It is unquestionably the rule in this State, established by all the textbooks and a great many decisions of this court, that ordinarily evidence of extraneous or other crimes are inadmissible; that an accused must be tried alone for the crime with which he is charged and that it is not admissible to prove him guilty in a given case by proving that he is a criminal generally, or committed other like crimes. See sec. 338, Branch's Cr. Law, where some of the cases are collated. Appellant, however, recognizes that proof of such extraneous crimes are admissible when they tend to show intent, knowledge, etc. There can be no question but that whenever knowledge and intent are necessary to be shown, evidence of extraneous crimes tending to show or showing this is admissible.

Our statutes create some offenses where intention or knowledge is not material. In most crimes, however, intention and knowledge are not only essential but must be proven. Under our law, if there is any crime more than another which requires that knowledge and intent is necessary, it occurs to us that that offense is the offense of abortion. Intent and knowledge are the very gist of the offense of abortion.

Mr. Bishop says in the crime of abortion the evil intent "is an element indispensable to the offense." Bish. on Stat. Cr., sec. 747, p. 749. In 1 A. E. Ency. of Law Prac., p. 146, it is said: "Intent, being an essential ingredient of the crime (abortion) must be proved." As we understand, all authorities hold that this is essential. It is unnecessary to collate them.

It is perfectly manifest from the record in this case and the statement of facts that appellant's contention, to prevent conviction, was twofold: first, that said Mrs. Moore was not pregnant and that appellant did not know it if she was, and, second, that the acts she performed upon her were solely and simply for the innocent purpose and intention of bringing on the suppressed menses of Mrs. Moore under the belief that she was not pregnant. With the issues thus drawn there can be no doubt but that it was absolutely essential on the part of the State to introduce proof of any and all pertinent facts that would show or tend to show both knowledge of Mrs. Moore's pregnant condition and appellant's evil intention of producing an abortion upon her.

In 7 Ency. of Ev., p. 627, it is said: "In all cases in which the guilty knowledge or intent of a party in the act or transaction in question is an essential element, evidence of other general acts or offenses committed by such party or in which he bore a part, and happening at or about the same time, is relevant and competent to show intent," — citing, besides English decisions, and from the United States Supreme Court, the decisions of thirty-nine of the other States of the United States.

1 Whart. on Cr. Ev., after laying down the general rule that proof of collateral offenses are inadmissible, in section 31, says: "Certain exceptions exist, however, to the rule just stated," and then he enumerates nine specially, among them is (3) to prove scienter or guilty knowledge; (4) to prove intent. To the same effect see sec. 1126, Bish. New Cr. Proc.; also 1 Greenl. on Ev., sec. 53; 1 Jones on Ev., sec. 143; 1 Wigmore on Ev., sec. 302; 4 Chamberlayne on Ev., sec. 3222; Underhill on Ev., sec. 89. In fact, every other text-book writer on the subject of evidence lays down and applies the same rule.

Mr. Underhill, in section 89, says: "Another exception to the rule occurs when the intention present in an act is material. Thus, suppose the question is, was a given act, either by the accused, or by some other person, intentional or accidental? Here it is relevant to prove that the person whose intention is in question had performed acts of a precisely similar nature either before or after the act the intention of which is in question. And if it be found that he has performed many such acts, we have the best of grounds for drawing the conclusion that the act, in the present instance, is intentional and not accidental. So where the commission of an act alleged to be a crime is admitted by the accused but he denies that he intended to commit it or alleges that he did it without guilty knowledge his doing similar acts, wholly independent and unconnected with that under investigation is relevant to show intention."

Jones on Evidence, vol. 1, p. 725, in the latest edition of his work, after laying down and discussing the rules as stated, says:

"Formerly there was a clear distinction made between two classes of cases: (1) Where the intent with which an alleged offense was committed is equivocal, and such intent becomes an issue at the trial, proof of the commission of other similar offenses, within certain reasonable limits, is admissible, as tending to throw light upon the intentions of the accused in doing the act complained of; (2) where from the nature of the offense under inquiry, proof of its commission as charged carries with it the evident implication of a criminal intent, evidence of the perpetration, or attempted perpetration, of other like offenses will not be admitted. That distinction does not appear to have been warranted, and the more modern law may be taken to be that, notwithstanding there may be other proof of intent in the case, rendering evidence of another crime unnecessary, yet the prosecution is not thereby debarred from making all the proof possible on the subject, and consequently, in such a case, may introduce evidence of the other crime."

Almost every one of the above text-books specifically state that such evidence of other crimes are admissible in a case of abortion.

Our statute (art. 1, C.C.P.), in stating the object of the Code, says: "It seeks . . . (4) to bring to the investigation of every offense on the trial all the evidence tending to produce conviction or acquittal."

That such independent crimes are admissible to prove intent and knowledge has been held and applied in a great many of the decisions of this court. In fact, we know of no decision of this court where the contrary is held. Persons v. State, 3 Texas Crim. App., 240; Francis v. State, 7 Texas Crim. App., 501; Jones v. State, 14 Texas Crim. App., 85; Martin v. State, 28 Texas Crim. App., 364; Street v. State, 7 Texas Crim. App., 5; Gilbraith v. State, 41 Tex. 567; Cesure v. State, 1 Texas Crim. App., 19; Fore v. State, 5 Texas Crim. App., 251; Davidson v. State, 12 Texas Crim. App., 214; House v. State, 16 Texas Crim. App., 25; Taylor v. State, 22 Texas Crim. App., 529; Nixon v. State,31 Tex. Crim. 205; Ware v. State, 36 Tex.Crim. Rep.; Reese v. State, 44 Tex.Crim. Rep.; Wyatt v. State,55 Tex. Crim. 73; Glasson v. State, 37 Tex.Crim. Rep.; Kaufman v. State, 70 Tex.Crim. Rep.. The court gave appellant's special charge properly limiting for what purpose the jury could consider the testimony of said witnesses.

In our opinion the testimony of all the witnesses objected to was clearly admissible.

It has been so many times decided by this court that the woman upon whom an abortion is committed is not an accomplice, that we regard the question as settled. Hunter v. State, 38 Tex. Crim. 61; Miller v. State, 37 Tex.Crim. Rep.; Willingham v. State, 33 Tex.Crim. Rep.; Watson v. State, 9 Texas Crim. App., 237; Fondren v. State, 74 Tex.Crim. Rep., 169 S.W. Rep., 411. Mrs. Rob. Moore was not an accomplice and no charge thereabout was necessary or proper.

As shown by the record, the appellant, on cross-examination of Mr. Reynolds, the sheriff, sought to show his ill-feeling and hostility to appellant in order to discredit his testimony against her, and in cross-examination on the point had him testify that he, with the other white people in his community, resented the fact that appellant had bought a place in their community and moved into it, — "not because she was a negro but because she is a character." The court, therefore, did not err in refusing to charge the jury not to consider the said sheriff's testimony to the effect that she was a professional abortionist, the court explaining that the testimony on the subject was brought out and introduced by appellant.

Appellant's bill No. 12, after the style and number of the cause and the usual "be it remembered," states "that when the prosecuting witness, Mrs. Streeter Moore, was giving her testimony she was permitted to testify in answer to a question propounded by the State's counsel that she, the witness, heard before she went to the defendant that the defendant performed abortions." This is, in substance, the whole of the bill, except the objections to said testimony which followed. Under all the rules this bill is too meager and insufficient to require the court to pass upon the question. James v. State, 63 Tex.Crim. Rep.; Conger v. State, 63 Tex.Crim. Rep.; Best v. State, 72 Tex. Crim. 201, 164 S.W. Rep., 996. The trial judge in approving this bill, qualified it by stating that while he at first admitted the testimony over appellant's objections, he "gave to the jury a special instruction to disregard the same and not to consider said testimony for any purpose whatever." We find in the record a special charge to the jury telling them that said testimony "was improperly admitted in evidence and you are instructed that you must not consider said testimony for any purpose, nor permit your verdict to be influenced thereby," given at appellant's request. The court erred in admitting this testimony, but under the circumstances and the facts shown in this case, having given said special charge, the error of the court does not require a reversal. Miller v. State, 31 Tex.Crim. Rep.; Hatcher v. State, 43 Tex.Crim. Rep.; Robinson v. State, 63 S.W. Rep., 869; Trotter v. State, 37 Tex.Crim. Rep.; Jones v. State, 33 Tex.Crim. Rep.; Morgan v. State, 31 Tex.Crim. Rep.; Sutton v. State, 2 Texas Crim. App., 342; Roberts v. State,48 Tex. Crim. 210; Martoni v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 349. Especially as the statute now is, the said charge withdrawing said testimony was given to the jury before any argument of the case.

Appellant made no objection whatever to the court's charge. The court did not submit to the jury for a finding the offense of an attempt to produce abortion. Appellant requested no charge whatever upon the subject. She now claims that the omission of the court to so charge is fundamental error. Under the proper construction of the Act of April 5, 1913, page 278, amending certain articles of the Procedure, we think appellant's contention is wholly untenable. We have so held in a large number of cases since said amended act went into effect. We deem it unnecessary to collate them or further discuss the question.

The judgment is affirmed.

Affirmed.