*1 error jury, no rights with diced his presented. trial
Appellant contends copy admitting in evidence
court erred given testimony Andrew Johnson objection his over examining trial on the tes able to present and
that Johnson
tify such facts. about appellant cross-examined Johnson ex- testimony given at
reading from authorized
amining This trial. offered of the statement 728, C.C.P. subject. Art. the same
was on testi- Further, an examination Johnson’s main trial and the examining mony on differences. material shows no error. no presents
contention sup is sufficient appearing, no error
port conviction is affirmed. judgment by the Court. approved
Opinion CATCHING, Appellant,
Jesse Texas, Appellee.
The STATE
No. 34968. Appeals of Texas. Criminal
Court 23, 1962.
Jan. 27, 1963.
Rehearing Feb. Denied
692
Appellant’s grounds for reversal will be considered they the order in which are presented in his brief. complains
He first the overrul ing of his motion the indictment based description omission aof of the alleged instrument to have been “thrust and forced” into womb prosecutrix. Our attention is directed case of State, Mayberry v. 432, 160 Tex.Cr.R. 271 wherein the same contention was raised and we said: “It would have practice, the better here, for the state used, to describe instrument if if and allege.” so indictment Mayberry further conjunctive alleged that the abortion performed by administering drug and medicine. We followed the cases of Reum v. 90 S.W. State, Tex.App. 237; Watson v. 9 and Cave description held that further drugs necessary. medicine The indictment herein was drawn under of the abortion (Art. statute Galveston, P.C.) provides Magee, any person F. Charles Emmett Houston, appellant. Gill, knowingly for shall use toward a preg- W. “any nant woman violence or means what- Galveston, Atty., Damiani, Jr., Dist. Jules externally internally applied, ever Douvry, Atty., Asst. Dist. Gal- L. Thomas thereby procure pun- an abortion” shall be veston, Douglas, Atty., B. Leon The indictment herein ished. is sufficient Austin, the State. charge such offense without further de- scription used. WOODLEY, Judge. Presiding with, conclusion is consistent Our if not required by, abortion; holding that an punishment, our indictment The offense procuring an abortion years. administer- ing medicine drug or need not further alleged indictment or drug. describe such medicine together, acting Albert Thomas Mayberry wilfully unlawfully, designedly, Our did practice be better it would “thrust and force consent describe with her used, prosecutrix, instrument parts” equally private ap- womb think, woman, plicable, drug or “an instrument calculated medicine pregnant State, supra, used. did and there produce is not authority for -embryo posi- fetus or therefore destroy the: life (prosecutrix).’’ tion. of the said womb none remark, appel- heard the and felt certain cited Rupe 41 Tex. meant of them would have known what was prose- case but lant, not an abortion No er- P.C., hear it. remark did now Art. cution under what *3 appellant’s motion overruling ror in the child an unborn the life of destroying panel quash jury is shown. to born have been would which otherwise insufficient held The indictment .alive. claim Appellant’s remaining statute. merely of that alleged the words evi error to the admission of certain relates facts requires of the dence and a statement of rever claim Appellant’s second proved. of the refusal to the sible error relates appellant to
trial court to allow the thirty-year widow and Prosecutrix, a old excep his bill jury, or for before children, that the mother of three whom the tion, man with name of the and, realizing pregnant, she after became prosecutrix had intercourse had sexual condition, Fore- spoke her Thomas to one but no error the number times. see We accompanied and a woman hand and him upon ruling his trial court in commend the place Marque ato named Martin from La irrelevant these facts. parked auto- Galveston. Forehand her, and, receiving mobile after from $50 ruling no error in the We see re- upstairs; in a while he went short questions addressed to concerning the court accompanied turned her to as a prosecutrix why appeared as to she a room apartment. Appellant took her into intima There was no witness the case. into her a rubber tube where he inserted falsely or had testified tion that the witness to vagina and her allow it remain told to prejudice against any that she bias or had days go or until she had there for three to per jury in accused. In the absence of the she came back down- to doctor. When bill, appellant to es fecting his was unable Mar- rejoined Forehand and the stairs she be testifying that was tablish left, woman; gore tin that the latter was prosecute if she cause her of threats to returned, which for a while and after Having did not do failed to establish so. Marque. effort to La The first drove back in such the truth of the assertions contained about an abortion success- bring to questions, holding in Ogburn v. ful, again she went Galveston up relied re-inserted by appellant, application on can have no stay- later, days while tube. Several here. apartment, expelled ing at Forehand’s into the commode. the fetus Appellant’s complaint relates next overruling discharge to the of his motion to Appellant made a written statement which panel because of the court’s refer voluntary offered in evidence as his ence to other case man.” “the objection, following Over confession. of such or confession was Appellant incorpo- relies his motion admitted. beginning rated at the of the Statement Facts, with the trial and his ruling court’s during the end January, “Sometime exception thereto. 1961, Tom called me and said he wanted question
Assuming that me. I told him come is before us talk to and see provisions 760e, days my under the later he came Art. Vernon’s me. Several Ann.C.C.P., Galveston, and that no Ave. B in at 1327 Texas. was ad- store support of along boy duced in motion in the store with the jury panel, appellant told is bound for me. Tommie me he court’s had a works motion, pregnant statement in and was overruling gotten that he that had girl (cid:127) juror perform panel did not on the He wanted me to an abor- believe married. ask_ Appellant’s how much I complaint tion on her. He me the con He him charge and I told fession included offenses other than $45.00. day trial, Tommie called left. About a later stricken,, had talked girl me and these told me he matters should have mind, changed me about had her the confession Martinez introduced. me girl who he wanted said had another told him to perform upon. an abortion on. cited and relied bring over to see me girl One exceptions rule part first together. talk out About requires showing, the exclusion of evidence my came to February, Tommie *4 the commission of crimes is when the other upstairs came night. house. at He was The- gestae. evidence is as res admissible girls told he had both himself. He me exception applies here. The circumstances me for give $50.00 downstairs and would and arrangements details the with made one, girl the other the abortion on and appellant ap- for the showed that abortion abortion on give for the me $50.00 pellant agreed with Forehand abort two over, agreed. He
her.
talked it
and I
We
girls
were taken to him
downstairs,
gave me
Tommie went
$50.
day,
paying appellant
the same
Forehand
up,
tall,
girl came
black-haired
and then a
for his services.
bedroom,
and I
her
a
took
into
the
right
top
first
the
at
the
room to
girl
The
named
the indictment cannot
in the bed
lay
the
had her
down
stairs.
I
aborted,,
girl
distinguished
from the other
panties.
I then inserted
her
and remove
reading
from a
of the confession.
up,
got
her womb. She
a catheter
into
evidence,
appellant’s con
including
panties and
left.
put on
then
her
was-
girls,
the
of the two
fession to
abortion
a
upstairs with
came back
“—Tommie
State, 155
under Housman v.
admissible
gave me
woman. He
little blonde
$50.00
wherein
woman into
then
I took
left.
said:
I
panties.
her
and she removed
bedroom
bed,
I
lay down in the
had her
“The
entitled
then
State
It took
details of her con-
her womb.
circumstances and
inserted a catheter
appellant
me to
it.
twenty
for
insert
on the occasions of
minutes
tacts with
me about
days
later the
home
About
at
when the
left.
four
She
for
back
see me.
were made
the abor-
arrangements
came
woman
black-haired
per-
act
They
tion,
told me that
when the
Tommie.
the visit
with
She
purpose
aborting
the catheter
for
had
remove
formed
the woman
witness,
money paid,
put the catheter
and the-
put it
I
back.
wanted me to
in accordance
instructions-
womb
her. She
return
into her
back
* * *
appellant
regarding
confer
the-
left.
Tommie then
the fetus.
passing of
10, 1961,
night
February
“On the
Kline and
from the
some officers
Sheriff
disclosed, by
transactions
in-
“If such
Marque
my
Police came to
store.
La
Kline
otherwise,
or
ference
they knew about the
me
abortions and
told
engaged
the commission of other
my
had
warrant
search
also
home.
it was nevertheless
acts or
looking
told me
were
Kline
for nar-
part
the res gestae.”
as
admissible
and the instruments I used
cotics
proof gave
them a
box
“If
home of
abortions.
tool
contain-
furniture,
catheters,
instruments,
and the
knitting
several
ing
needle and
performance
equipment therein and
that I
the facts
items
used in the
such
They
showing the use of
home
were in a dresser
and.'-
abortions.
draw-
purpose
the witness for the
in the-
bedroom used in the
contents
er
abortions.”
doc-
commode,
her
ap-
the fetus in
and that
pay show
aborting her for
tor,
Reeves, came later.
P.
abortionist
Dr.
professional
pellant was a
John
room
home contained
that her
as
entered
Dr.
testified that
Reeves
room,
operating
equipped
an abortion
as
four
about
house he saw a fetus of
as
rule
change
not
such result does
floating
a half
gestation
months
admissibility
such evidence
commode,
placenta
part of
gestae.
part
as a
of the res
cord.
inadmis-
become
did
“Nor
Dr.
after
testify
appellant did
because
sible
did
Reeves
left
left Forehand
testimony
controvert
otherwise
apartment
see the
thereafter.
fetus
her acts and intent.”
as to
understand-
She also testified: “It was the
take
ing
(Forehand)
that he
under
admissible
confession was also
fetus.”
467, 276
Richardson
case we said:
appellant’s objection,
Over
*5
day
permitted
following
to show that
the
part of the confes-
incriminating
“The
dump in
garbage
went to
the officers
the
that
was to the effect
introduced
sion
City,
given
through
instructions
Texas
signed
appellant wrote some checks
by Forehand,
a
them
found
of
the fetus
carried
name to them and
C. Jones’
J.
paper
wrapped
in a
in some
male child
sack
Guaranty
People’s
State
to the
them
plastic
at the
amongst
garbage there
the
money;
got
that one
the
Bank
dump.
and another for
checks was for
the
$7
objected
intro-
appellant
to the
The
$6.
appellant’s
It is
contention that
the evi-
upon the
of said confession
duction
complained of
acts or ad-
dence
constituted
that
the same contained evi-
ground
done made in his absence after
or
missions
other transactions and offenses
dence of
conspiracy,
any,
if
had been terminated.
having no connection with the offense
p.
12
where
Par.
is cited
Tex.Jur.2d
upon
in
upon
defendant was
which
the rule is stated.
cause
the evidence
or other
transactions
offenses
The rule that renders inadmissible acts
wholly immaterial and irrelevant and
co-conspirator
of a
admissions
done or
prejudicial to the defendant in this
in the absence of the
made
defendant after
It will be observed that
cause.
conspiracy
terminated, by
has been
above set' out
worded
is so
crime,
application
commission of
has no
impracticable
have been
it would
that
can be shown
co-conspira-
where it
that the
segregated the other offenses
have
possession
in
tor was found
fruits
which
the one for
from
weapon
crime or the
or instrument with
being tried. Under these condi-
the crime was
which
Hender-
committed.
tions,
not think the court
in
erred
do
son
confession, although it
admitting the
Sims
suggestions
of another
carried
The mere fact that
offense.
language
confessing
to the
The fact
Forehand assisted the offi-
used
finding
for which he was on trial which
cers
the fetus did not
crime
render
necessarily imply
discovery
that he was
of such
evidence
inadmissible.
finding
similar
The
of the fetus did
of another
offense
guilty
not tend to
appellant,
confession.”
criminate the
exclude the
strongly
tended
fetus,
to show
the life of which
destroyed by appellant pursuant
had been
,
expelled
agreement
with Forehand
present when
.Forehand
prosecutrix,
taken
Forehand
had been
acter
is
instrument
unknown to
apartment
grand
from
to the
jurors.”
the commode in
place
Batson
it was found.
In
271 S.W.2d
Hunter v. 335, 26 State,
820, 33 Tex.Cr.R. Cave Tex.App. State, Watson 90 S.W.
Reum v. 49 Tex.Cr.R. State, supra.
1109, Mayberry portions that the
I also feel performance which refer to his
confession used bed he
of abortions and by the could considered
abortions guilty
as admissions he had producing abor
engaging in business of reasonably
tions, and such statements were prejudice rights
calculated may general It is a rule that the
jury. introduce, developing case its
chief, tendency to which has no connection with material fact in some charged merely tends
the offense criminal, gen the accused is a
show that
erally. Roark v. 101 Tex.Cr.R. 242; Tex. Martinez v. 134 S.W.2d and Garcia
Cr.R. 305 S.W.2d stated, the reasons I dissent to the
For
affirmance of case. Roy WINK, Appellant,
James Texas, Appellee.
The STATE
No. 35243. Appeals Criminal Texas.
Court
Jan. Reid, Abilene, & Reid Reid W. J. 27, 1963. Rehearing Feb. Denied appellant. Douglas, Austin, B. Atty., Leon State. DICE, Commissioner.