*1 77 State, 172; R. 54, 70 Texas Cr. 2d Baker v. R. 261 Cr. 618, S.W. 414, 998; Essery State, R. 163 72 Cr. v. Texas 158 S.W. 150; 66, 17; State, R. 170 Texas Cr. S.W. v. 75 S.W. Coleman 717; 106, State, 2d R. 35 Wil- 117 Texas Cr. S.W. Pritchard v. Cagle 441; 366, v. State, 42 2d 118 Cr. R. S.W. liams v. State, Texas State, King 140, 545; v. 135 2d 147 Texas Cr. R. 179 S.W. 71, 2d 800. Texas Cr. R. 117 S.W. 188, Edwards, R. 67 parte Texas Cr.
The case of Ex 125 case, applicable. 308, appears In that 2d to me to here S.W. be forged passing in- a of the offense of Edwards was convicted suspended application sentence but strument. He filed an necessary support proof. trial court did did not The by jury suspension question of sen- not submit to the Notwithstanding fact, jury tence. did recommend such suspended. trial court re- its verdict the sentence be judgment ceived that and tendered thereon refused verdict but suspend suspension recommendation for the sentence. The ignored of the sentence was accused had not made because the proof necessary judgment authorize it. The conviction subject absolutely to at- in that was held to be void and case by corpus, tack writ of the trial court was with- habeas authority power out or to render it. my opinion, judgment
In this of conviction rests not jury, accorded, jury verdict written where trial was written, first, and, second, but by a verdict court the trial approval by my of that verdict brethren. my opinion, This should not In I be. the cases here cite so my going If demonstrate. cases, brethren are not to follow those should, fairness, per- in all overrule them and not any part mit them to remain as of the law of this state. respectfully
I dissent.
Emma Cortez State 27,175. December 1954 No.
Rehearing February 9, Denied *2 Hall, Harold L. Simmons, Dotson, E. B. (on and Sam J. mo- rehearing for only) Antonio, tion appellant. for San Austin Anderson, Attorney, F. Roy Criminal District R. Barrera, Attorney, Antonio, Assistant Criminal District San Wesley Dice, Attorney, Austin, and State’s for the state. MORRISON, Judge. abortion; punishment,
The is years. offense Prosecutrix, child, that, of mother one testified in com- pany with mother-in-law, her husband her and went to the she operated by appellant clinic and purpose her husband for the having performed her; of day upon an abortion that on first agreed price a but was later to $125 reduced $100; appellant employed open an instrument to her womb, gauze therein, a inserted tube and rubber some told following day. to return the her She stated that she returned day, appellant, assisting, next and the with her husband took tube, again, clamps out the inserted the a used 14-inch scraper which had needle-like instrument on it. She testified operation painful it and when was concluded the containing bloody appellant pieces to a bowl her exhibited and “said was it.” flesh prior operation testified that to the
Prosecutrix she had experienced “morning menstrual and had missed two following it such sensation and that ceased and sickness” she regularly. began to menstruate going further short while testified before to She gone physician ato licensed to determine if had she given pregnant, that he had her three hormone fact she was begin menstruate not to if she did her that and told shots shots that the pregnant. She stated that she was indicate
would pills were her, some which then took that she effect had no failed, also but menstruate supposed cause her to to pregnant, that she was reported her mother-in-law that she of coercion the abortion that she submitted by her mother-in-law. exerted fully. testimony her corroborated
Prosecutrix’ husband the state but called as witness mother-in-law was surprise plead very The state reluctant witness. made formerly taken from her a statement questioned her from attorney. the district committing and denied
Appellant in her own behalf testified abortion, prosecutrix to the naturo- had come stated that the operated by husband to ascertain pathic herself and her clinic administering pregnant, and that after not she was whether or “Q” charge $5.00, she as- test, was for which their normal prosecu- pregnant and so informed certained that she was not trix. behalf, any husband, testifying
Appellant’s in her denied gave extraordinary operation and an ex- participation in the testimony of in the the planation the fee mentioned $100 witnesses. state’s Phillips called in rebuttal the state and testified
Dr. was given prosecutrix pregnancy the test for hormone that he had charged day shortly the in the indictment. before quash we are met with motion to the in- At the outset alleged defects, upon three which we shall dis- dictment based serially: cuss alleged “designedly that indictment the did
1. The vagina. Appellant into the ...” that and force contends thrust allege “unlawfully, willfully it did not is it defective because allegation further in the indictment designedly.” find We appellant “did then and there the use of said means that the unlawfully, wilfully designedly produce an abortion” This, think, allega- is if in we sufficient fact prosecutrix. such necessary. are tions allegation with the did not conclude indictment
2. appellant destroyed the act of the embryo the life of the or fetus prosecutrix. in the womb of the Gray State, In 77 Texas Cr. Rep. 221, that, though S.W. this court held an such allegation proper, is it is not essential. alleged 3. The indictment “a instrument, certain metallic then produce and there calculated to producing to aid an Appellant abortion.” phrase contends to aid in “and producing” vague, renders uncertain and indefinite. Her claim charging seems to be this constituted the of both an abortion attempt and an to commit abortion in the same count. With this agree. we cannot It questioned phrase is clear that the referred allegation to the separate instrument used and an was not aof independent part appellant. act on the of the
Appellant contends that the evidence is insufficient to show prosecutrix pregnant was in fact at the time visited she appellant’s testimony clinic. She relies Phillips of Dr. wherein he pregnancy states hormone test for is not prosecutrix’ testimony youth infallible that a fever in her irregularly caused her to menstruate before the birth of her first child. recapitulate briefly.
We Prosecutrix was the mother of one child symptoms pregnancy; and therefore familiar with the she had morning missed two menstrual and had sick- ness; physician went she test to determine whether pregnant; positive (it fully not or she was test *4 developed that the test itself could not have caused the abor- tion) ; pills they hope she then took in the some would menstruate, not; her to did cause appellant’s she then went having naturopathic purpose clinic for the of an packed, performed; her dilated and abortion following womb was and the day by scraping instrument means of certain bits removed; morning bloody ceased, flesh her of were sickness regular again. her menstrual became jury they accepted of the it is From the verdict obvious given by prosecutrix the of the incident the and her hus- version rejected that of the and her witnesses. The' band jury under law of court the case to circum- support submitted evidence, we find the sufficient to evidence stantial the conviction. judgment appearing, error of the trial
No reversible court is affirmed.
81 MOTION FOR REHEARING ON Judge. BELCHER, urges rehearing, appellant
In her the use motion for error in by pro- aof written mother-in-law statement made of during secutrix permitting her examination the state it was impeach state its own witness. knowledge The record said had of shows witness facts alleged surrounding the offense. It shown was the witness unwilling pertinent to disclose contained facts in her former statement, thereupon pleaded surprise written jury the state and the permitted only was instructed that the same was for the purpose impeachment. facts, Under these no error is shown. appeal properly disposed
We remain convinced original on submission. Appellant’s rehearing motion for is overruled.
Opinion approved the court. A.
John Hamilton State 27,167. 15, No. December Appellant’s Rehearing Motion for Denied (Without February Opinion) Written *5 Appellant represented himself.
Wesley Dice, Attorney, Austin, State’s for the state.