*1 Gray v. The State. 1915.} and from said that knew therefrom understood, .by the jury they no considered have been Keeney’s Mr. could charge testimony if it did. Forsythe, the of said credibility affecting than purpose gone court to amiss have It have for the be it would not been may consider could charge they further in that told the jury said For only credibility, did, for the affecting the failure to charged, in the but in effect so sythe, substance having will noted error. It it, add that does not reversible present As 16. part paragraph whatever was made the latter objection aas of Mr. was fact, Keeney supporting, matter of the testimony testimony the circumstance, and not impeach, effect did support the the upon told would jury but to have so Forsythe; the this charge court by weight evidently which 356, Rep., 74 Texas Crim. to avoid. endeavoring (Brown court instructed The 448.) specifically 437, p. S. W. Rep., facts of the рroved, credibility they judges jury testimony. their to be weight witnesses and covered charge fully appel- court’s seventeenth paragraph The it was subject, unnecessary Ko. 4 charge lant’s special is affirmed. judgment charge. give special Affirmed. 25, 1915.—Reporter.] June denied [Rehearing Gray v. The State. M. E. 28, April
No. 3499. 1915. Decided 9, granted Rehearing June 1915. Construed—Common Law. 1.—Abortion—Indictment—Statutes 1071, Code, defining Penal of article offense of clause That 1907, defining the article the Act of added to meant “abortion,” was not intended to term definition of by the restrict abor- instead, prevent tion, common to add law construction existed, formerly where of statute in term which indictment followed except the particulars, inclusion of said all latter clause of said article, is sufficient. the same Construed. 2.—Same—Indictment—Statutes abortion, 460, the indictment for tested articles Where suffiсient, Procedure, was of Criminal Code no error and 474 same, overruling quash the allege motion to because it failed to towit, Code, Penal of article reason clause latter applied fetus means performed, whom the abortion was person upon to the life of the destroyed, premature embryo the womb was birth was caused. the womb Stated—Indictment. 3.—Same—Rule by- allege indictment the offense never a rule it As statute, although prescribed meaning several defining of the words by the itself. statute Reports. Criminal —Same—Sufficiency Evidence—Pregnancy—Circumstantial Evi- dence. Where, abortion, evidence, upon trial of circumstantial, although conviction, sustain sufficient to and showed that the person whom *2 the was committed was the time the defendant com- abortion, various mitted the the offense of acts which constituted the gave charge circumstantial proper requiring court a on the jury evidence time, prosecutrix pregnant at find the was the there was no' reversible error ground. 5.—Same—Evidence—Other Offenses—Intent. abortion, Where, upon trial of there was no evidence offered or introduced prove tended to other than of acts performed which which defendant abortion, producing prosecutrix the intention were with preg if the was and from nant, jury tended to show which the testimony which author were women, produced defendant ized believe that abortions on other both committed upon after the defendant .in prosecutrix acts before error, reversible was the instant might inadmissible and as issue that there State, guilty not involved. Hollowing be no intent was Bowman v. 70 22, Rep., Prendergast, Crim. and other eases. Presiding Judge, Texas dis senting. —Same—Accomplice—Charge of Court. 6. upon whom an abortion The woman is committed not an accomplice, and the evidence another State’s was an witness accom error no in the charge, there therefore court’s plice, upon was failure to State, testimony. Following v. accomplice Fondren 74 Texas Rep., Crim. 552. —Same—Cross-examination—Charge of Court. 7. upon of abortion defendant Where trial on cross-examination of a sought defendant, ill-feeling hostility witness to show State’s fact that defendant not desired brought in the community, out was character, a because she negro, was a but was she because was no error to charge jury not to court’s refusal consider the testimony to the professional was abortionist. defendant effect Exceptions. 8.—Same—Bill exceptions require the bill of insufficient Where was court testimony, hearsay matter pass upon the could not be re besides, viewed; jury.. Following withdrawn from the matter was Best v. 201; State, State, Rep., Miller v. Rep., Texas Crim. 31 Texas 72 Crim. other cases. Charge Charge—Objections —Same—Requested of Court. 9. abortion, Where, upon objections trial of whatever were to the made charge requested submitting and no charge, court’s to of an attempt issue abortion, there was no reversible error. Offenses—Intent. 10.—Same—Evidence—Other evidence, only reasonable deduction Where a" trial for abortion, does raise the issue that at the time defendant operation prosecutrix performed knew that latter was not only performed operation pregnant, flow of the menses, performed evidence showed that act done abortion, prosecutrix menses to bring cause flow about an if pregnant, and no which tended to other than was introduced produc- the acts defendant with the intention abortion, prosecutrix ing pregnant, that defendant women, produced on other abortions both before and after the act committed Following prosecutrix, was inadmissible reversible error. y. Gray 223 The State. 1915.1 Pre Prendergast, State, Rep., and other cases. 55 Crim. Harris v. Texas dissenting. siding Judge, "below Dallas. Tried Court of District from the Criminal Appeal Crawford, Jr. Hon. before the W. L. two imprison- abortion; years penalty, from a conviction of
Appeal ment in the penitentiary. states the case. opinion J, Flanary, & Nelms, Gibson, Allen Pippen, W. E. Chas. A. W. Strickland of the indictment: On question insufficiency appellant. 351; State, id., 9 v. State, 518; Texas Crim. Parker v App., 619; id., Kerry id., 404; Huntsman v. State, State, Hunt v. State, 74 232; Fondren v. 178; State, id., Pierce v. State, id., Crim. 169 S. W. 411. Rep., Rep., Griffith v. pregnancy: of evidence insufficiency
On question State, 1 id., Loza v. 9 Texas Crim. App., *3 1075; State, other offenses: Bink 89 W. Rep., v. S. On question W. 1077; State, Denton v. 60 S. State, 89 S. W. Davenport Rep., v. 246, Rep., 59 Texas Crim. 128 W. 670; State, Rep., Clark v. S. Rep., 320; 86, State, 60 Texas Crim. 131 S. 131; Rep., Nunn v. W. Rep., 524, 801; State, Pitts Texas Crim. 132 S. W. Skid Rep., Rep., v. 60 Pride 497, 1129; State, 57 Texas Crim. 123 S. W. Rep., Rep., more v. 476; 563; id., Harris 55 State, more 59 Texas Crim. v. State, Rep., v. State, State, id., 488; James v. id., 249; 59 Johnson 57 Miller v. v. State, 612; Bowman 155 S. W. 939. State, W. v. Rep., Rep., 138 S. testimony: of" court to charge accomplice of failure On question State, Texas 237. 9 Crim. App., Watson v. State; withdrawal legal testimony: Durham v. On question State, v. State, 172; 35 S. W. Rep., Haney Rep., Schwen v. S. W. State, 623; State, 30 Texas Crim. App., v. Drake v. 34; Welhausen 265; State, 51 Texas Crim. Skeen v. Rep., id., McDonald, General, Assistant Lively, Attorney C. and Mike T. C. State. of other offenses On question Attorney, County 5, and State, 7 Texas Crim. cases cited in App., intent: Street v. dissenting opinion. State, of the of the indictment: Reum sufficiency On v. 82, 125; Link 73 Texas Crim. Rep., Texas Crim. Rep., State, 74 Texas 552, Fondren v. Crim. Rep., 164 W. Rep., S. 411, opinion. cited dissenting and cases Rep.,
S. W. Appellant was Presiding indicted, PRENDERGAST, Judge. 1907, amending convicted of abortion. Prior to Act of March 20, article 1071 of our Penal abortion, the offense of (641) Code, ap to this thus defined: plicable designedly If any shall person use woman toward a with her consent or means pregnant any violence, whatever, or and shall applied externally internally thereby procure Eepobts. 77 Texas Cbimisal shall
abortion, he be etc. punished, Said Act said re-enacted article, making change therein a hereto, applicable added except separate in these words: paragraph the term ‘abortion’ “By is meant that the embryo, life the fetus or shall destroyed be in the mother’s or that womb, a birth premature thereof be caused.” So that statute, the offense herein applicable said out the by leaving matters, is in this unnecessary If shall language: any designedly person means, woman, consent, use toward pregnant any violence whatever, dr an. externally and shall applied, thereby procure internal^ abortion, he shall be confinement in the punished penitentiary less than is. two nor more than five the term “abortion” years. By - meant fetus embryo destroyed life of the shall woman’s womb or birth be caused. premature thereof
The more than one count. trial indictment in this case has court, to the second After the however, restricted the case count. said count is as averments in indictment follows: every That “did unlawfully, M. E. on March Gray, wilfully Moore,, make an assault in and one person Sadie designedly woman, there, with the did then and consent insert, thrust force into the Moore, parts private said Sadie instrument, a. a certain rubber towit, the said womb of Sadie mis- an abortion and then and there calculated catheter, produce afore- Moore; means Sadie her, said carriage abortion, then and Gray, the said M.' E. she, she, wherewith said Sadie Sadie Moore child the said the. and there so pregnant.” Moore, was defective is that this indictment fatally contention Appellant’s reason the means to said applied it fails to allege because destroyed, in the womb was embryo of the fetus Mrs. Moore “the life *4 was caused.” that a from womb or birth premature that at an indicates common law review of authorities A careful unless and until upon woman, not be abortion could produced our various courts, of States within womb. was “quick” child that an abortion can be this, most of them holding produced differ as to before the woman with “quick” time after any conception not for We, course, Legislature do know certain why child. our of above, article as it unless it did, to be quoted added clause thаt an hold not might of State could fear that courts unless contra- woman, child as “quick” on a be produced stage only being pregnancy pregnant, distinguished or fetus. As we understand stages embryo embracing early intended, not it article, to 'this should not be con- this addition instead, but to abortion, the definition add to it strued, restrict it article that construction as existed formerly prevent mentioned. in the particulars indictment under must sufficiency our law we testing y. Gbay 2.35 The State. 191o.] course, be necessarily governed wholly, if not codes. Of largely, our by which general are also principles applicable. How let us look to these sub- 451, Article statutory provisions: Procedure, Code of 7, Criminal in prescribing requisites division indictment, of an “The offense must set forth in says: plain be intelligible says: words.” Article 453 “The certainty required indictment is such as enable the judgment will accused plead it in bar same mаy for the any prosecution offense.” These articles in our originally Code when incorporated enacted some time courts, and for tendency then, The. afterwards, was to construe So much indictments so that strictly. Legislature 60, Act of March by undertook page legis- lative enactment to do with this strict away construction added, others, Act articles 461 and 474. article among By it is enacted that an indictment “shall be which deemed sufficient the commission the offense in charges and concise ordinary language in such a manner as to enable a of common person understanding what is meant know and with that degree of that will give certainty notice defendant offense with is particular which he charged and enable the court on conviction to pronounce proper judgment.” certain And says further words in no case are necessary. Article 461 is: "Whеn statute uses defining an creating offense general n terms it special particular an indictment on use the mag ” terms which in common language embraces the special terms
Article 474 is: “Words used statute to define an offense need not be strictly it pursued indictment; sufficient to other is use words the same or which conveying include meaning sense of words.” statutory statutes, Tested these we think it clear that the indictment in this case is sufficient as drawn, it fatally defective in that it does contain the additional averments which appellant contends it have should contained. We are not holding may add, under special facts proper case, what appellant been, It contends for. be that may allegation would not have What hold is that improper. the indictment, as written, suffi- think the written, cient. We indictment, of that unquestionably which will certainty enable the accused plеad- judgment herein in bar of other given upon any prosecution for the same offense. Also the offense in such charges ordinary concise language as to have enabled any person common under- meant, know standing notice give of the par- ticular offense with charged and to enable the court *5 of the conviction. proper judgment pronounce or We also think the special particular language what defining is the word “abortion” embraced in general means the clearly terms used terms indictment and the general in the used the special embraces embraced the addition by or definition to the article in particular the Grim, Vol. Reports. une, 77 Texas Criminal [J Act of 1907; in indictment include general and words used in the include special terms law added the Act of 1907 and sense of the whole of the words. statutory We lan- have statutes and offenses words many prescribing are offense, guage and some making words statute defined. As the in- rule, it is understand, necessary as never dictment the several allege the offense of by defining meaning Take, words in statute, the statute itself. although prescribed by instance, for “man- our says, statute P. manslaughter (art. C.); influ- is slaughter homicide committed under immediate voluntary ence cause, neither sudden from an hut passion arising adequate nor justified excused law.” Then articles certain defining follow words what is “under Thus, terms used. meant by and defining immediate influence of sudden Then defines cause?’ “adequate passion.” some of the cause prescribes which things adequate could are not. It has we think never been necessary held he, allege should an indictment for manslaughter specifically as terms and words used in the statute mean defined described provisions. state with as the
“Pregnancy is defined reference woman is of a woman designate child used condition being from the moment of until she has been delivered of conception Juris., Prae., & 116. child.” 1 1 A. E. of Law & Corpus Ency. p. earliest period conception extends from whole from the “Pregnancy Howard, Vt., actual of the fetus.” State expulsion said: “Abortion is Prac., & is In 1 A. & E. of Law Ency. p. time and the act before actual young of miscarrying producing abor- formed; to cause or before the fetus perfectly procure fetus. forth of the tion is to premature bringing cause procure crime, always does not import does not itself the word Though statutes, it has a term classification yet legal become occur designate the crime universally if not used generally now fetus, forth so of the human far bringing causing premature been made statute.” at common law or has so by act a crime Proc., 94, it is said: “The wоrd ‘abortion’ Ency. p. In 1 Standard a human fetus. premature delivery in common means terminology miscarrying, the act of or producing we understand “‘By abortion time, the fetus is formed. natural or before perfectly before the young to cause or this pre- -an abortion is And to or produce cause fetus.’ forth of mature bringing unlaw- under statutes . The crime of modern
“. the use abort, through a woman causing miscarry act ful means.” artificial insufficient to that the evidence was sustain next contends Appellant fails said Mrs. Moore that the
fhe verdict the acts that committed time at the read her. We have committed towards carefully shown to it .was course, Of statement -facts. studied the *6 Gray v. The State. 1915.1 court, Moore at the time. The State to that Mrs. was prove pregnant evi- his a circumstantial charge charge on this point, gave correct and believe specific- dence in accordance therewith required jury to they Mrs. at the before ally time, pregnant coulde We doubt her. acquit convict and if the had a reasonable of it to jury it our testimony. opinion, can see no useful purpose stating on circum- charge to meet sufficient amply requirements did, that Mrs. they stantial from it the could find, evidence and jury Moore was at the time. pregnant
Over introduction objections the court appellant’s permitted and the State E. Duke, Selby, Erwin, of the Mrs. J.° B. W. which would from which show, to facts tend Boddy abortions jury believe, were authorized produced women, upon on other the acts committed by both before after the said Mrs. Moore. is
It the rule all the text- unquestionably in this established by books court, great ordinarily decisions many of extraneous must or other crimes accused inadmissible; are that an he tried alone for the is crime with hе is it charged not admissible to him case that he guilty by proving ais criminal generally, committed like crimes. See sec. Branch’s Cr. Law, where cases some of the are collated. Appellant, however, recognizes of such extraneous crimes proof are admissible when tend show they etc. can intent, knowledge, There be no ques- tion but that whenever intent are knowledge necessary shown, to be evidence of extraneous crimes to show or this is ad- tending showing missible.
Our statutes create some where is offenses intention or knowledge material. In most intention crimes, however, knowledge not only essential must be Under our proven. law, any if there is crime more than another which and intent requires knowledge to us necessary, occurs that offense is the offense of abortion. Intent and are the knowledge offense of abortion. very gist
Mr. in the crime abortion the Bishop says evil intent “is an ele- ment sec. 747, offense.” Bish. on indispensable Or., Stat. p. A. In 1 & E. of Law Ency. Prac., & is said: “Intent, being p. an essential ingredient of the crime must As proved.” (abortion) understand, all authorities this is essential. un- hold It to collate them.
It manifest from the record case and the state- perfectly ment of facts that contention, appellant’s prevent conviction, first, twofold: Mrs. Moore was and that pregnant that said appel- second, was, lant acts and, know it if that the she performed the innocent upon simply intention solely menses Mrs. Moore under belief bringing suppressed was not With issues thus drawn there can be pregnant. no doubt but that essential of the State absolutely part to introduce and all facts proof any pertinent that would show Eeports. Criminal [Jwfie,
tend to both knowledge of Mrs. Moore’s condition evil intention appellant’s an abortion her. producing Ev., In 7 Enсy. 627, it is said: “In p. all cases guilty in.which the knowledge or intent of a in the act or transaction in party *7 an element, com- evidence of other acts or offenses general essential. or mitted such in or which he bore a at party part, happening intent,”— time, the same is relevant to show competent English besides States citing, decisions, Supreme and from the United Court, thirty-nine the decisions the of of the other of United States States.
1 Whart. on after Ev., general Cr. rule laying proof down of collateral offenses are “Certain inadmissible, 31, says: in section exist, however, stated,” rule he enumer exceptions and then just nine ates them guilty is scienter or specially, among prove (3) 1126,. sec. knowledge; intent. effect see (4) prove To same Ev., 1 Proc.; 53; Bish. New Cr. also 1 sec. Jones on Ev., Greenl. on sec. 143; Ev., Ev., 302; Chamberlayne see. 1 sec. Wigmore 4 writer 3222; Ev., fact, Underhill on sec. 89. In other text-book every on the rule. lays of evidence the same subject down applies rule- Mr. in “Another to the 89, says: section Underhill, exception sup- Thus, occurs when the intention is material. in act present pose is, accused, or was a either question act, intentional or accidental ? Here is relevant to person, prove- of a that the intention is acts whose in had person performed the act intention similar or after precisely nature either before has many which is in it be that he And if found question. conclusion acts, such have the best of grounds drawing we So is intentional not accidental. act, instance; in present is admitted by where commission of he crime alleged act to commit it alleges but he denies that he intended the accused inde- acts, similar he did his knowledge wholly without guilty doing to- that under relevant investigation unconnected with pendent and show intention.” work, Evidence, latest
Jones on edition his voli p. stated, says: as the rules discussing after down laying made between two distinction classes there a clear “Formerly offense com- with which an alleged cases: Where the intent (1) trial, intent an issue proof such becomes mitted equivocal, reasonable within certain offenses, of other similar of the commission intentions to throw limits, light upon as admissible, tending nature of; where from the complained (2) the act doing accused carries charged commission under of its the offense inquiry, proof intent, evidence of a criminal evident .of implication of other offenses will like attempted perpetration, perpetration, warranted, distinction does not appear That be admitted. that, notwithstanding be taken to modem -law may the more intent, case,. other proof rendering he mаy - yet the' debarred thereby crime-unnecessary, prdsecution another y. Gray 229 State. 1915.1 all the making subject, on the proof possible consequently, such introduce evidence of other crime.” may Almost one of the above text-books that such state every specifically evidence of other crimes are admissible in a case abortion. Code, statute Our (art. C. P.), object stating -says: “It seeks . . investigation every (4) offense on the trial all the evidence conviction tending acquittal.” That such independent crimes aumissible to intent and has been
knowledge held and in a the decisions applied great many of fact, of this'court. no decision know of of this court where is held. contrary Persons v. 3 Texas Francis State, 240; Crim. App., State, Texas v. Jones v. Texas 501; State, Crim. Crim. App., App., 85; Martin 364; State, v. 28 Texas Crim. State, Street App., v.
Crim. 5; State, App., Texas, 567; Gilbraith Cesure Statе, v. v. Texas Crim. 19; Fore App., State, 251; v. 5 Texas Crim. David App., State, son v. 12 Texas Crim. House 16 Texas App., Crim. *8 25; App., Taylor State, State, v. 22 Texas 529; Crim. Nixon App., v. 31 Texas Crim. 205; State, 597; Ware 36 Texas Rep., v. Crim. Rep., State, Reese 44 v. Texas Crim. Rep., 34; Wyatt State, v. 55 Texas 73; State, Crim. Glasson 37 Texas Crim. Rep., 620; v. Kaufman Rep., v. Texas The State, 70 438. gave Crim. court Rep., appellant’s special charge for what the properly limiting could consider the purpose jury of said witnesses. testimony
In our the all opinion the witnesses testimony objected to was clearly admissible. It has been so times decided this court many that the woman upon is not
whom an abortion is committed an accomplice, regard that we State, the as settled. Hunter v. 38 61; question Texas Rep., Crim. State, Texas Crim. 575; Miller v. 37 Rep., Willingham v. 33 State, 98; State, Texas 237; Texas Crim. Watson v. 9 Crim. Rep., App., Texas State, 552, Fondren Crim. Rep., v. 74 169 S. W. 411. Rep., was not an accоmplice no charge Mrs. Rob. thereabout was proper. Mr, record, As shown the the appellant, cross-examination of his sheriff, to sought to Reynolds, ill-feeling hostility in, her, to discredit his against order in cross- testimony he, on the had him examination the other white point testify fact community, in his resented the that appellant bought had people it,—“not and moved into because a in their she was community place character.” The court, therefore, but because she a a negro to to consider charge jury in the said sheriff’s refusing err abortionist, a to the effect she was professional the court testimony the subject brought out intro- testimony explaining by appellant. duced style Ho. after the and number bill cause Appellant’s remembered,” states “that when “be wit- usual prosecuting she was Moore, testimony ness, giving Streeter permitted Kepoets.
230 Cbiminal 77 Tesas to a the State’s counsel that testify propounded answer de she, to the defendant that witness, heard before went substance, fendant abortions.” is, This whole of bill, followed. except objections said Under- testimony all rules meager this bill too and insufficient the court require 75; James Crim. upon State, Rep., 63 Texas pass question. v. 72 Texas State, State, v. 63 Texas Crim. Best v. Conger 312; Rep., approving Crim. 164 996. The trial Rep., Rep., judge S. W. testi bill, he at first admitted the qualified by stating while in over mony objections, “gave special he appellant’s jury to consider for testimony struction the same and not said disregard any charge-to whatever.” We find in the a special' record evi admitted in them said “was jury telling improperly testimony must not consider said you dence instructed you -thereby,”' for influenced your nor verdict to be purpose, permit any testi The court erred given request. admitting appеllant’s in this the facts shown but under circumstances and mony, does not require, the error the court charge, said having given special v. 609; 31 Hatcher Miller v. Texas Crim. State, Rep., reversal. 869; 237; Rep., Robinson v. 63 State, State, Texas S. W. Crim. Rep., 43 Texas 468; State, Texas Jones v. State, Trotter v. Crim. Rep., v. State, 1; Sutton Morgan Crim. Rep., 7; Rep., Crim. Rep., Texas Crim. 342; State, Roberts v. State, 2 Texas Crim. App., Rep., Texas Crim. 167 S. W. Rep., Martoni v. tes said, is, withdrawing as the statute now charge Especially to the of the case. argument before jury any timony charge. no whatever the court’s made objection Appellant attempt the offense of an finding court did submit jury charge abortion. whatever Appellant requested court to so- the omission of ’the She now claims subject. construction is fundamental error. Under proper charge *9 Pro- certain articles page amending Act April have, untenable. We сedure, we think contention appellant’s wholly since went into- in a number of cases amended act large so held the- to collate them or further discuss We it unnecessary effect. deem question. is affirmed. judgment
Affirmed. Judge. are- to this affirmance. There agree I can DAVIDSON, rehearing. write on serious errors. I may several BEHEADING. ON 9, 1915. June Judge. to an affirmance of this agreed The writer case- HARPER, more of the term, thorough but a record study on a former day that he was in error in so on one has him doing proposition, convinced y. Gray The State. 1915-1 appellant that is, error admitting that there was no different on other and an abortion to attempted produce had produced original indictment. In the in this than charged the person people the record in manifest from “It is stated: perfectly opinion to contention, prevent facts, that appellant’s statement of case, and the not pregnant Moore was that said Mrs. conviction, first, twofold: acts that the and, second, was, know if she and that did not appellant pur- the innocent for she were solely simply performed upon Moore Mrs. menses of on the bringing suppressed and intention pose the correct this was was not If pregnant.” under belief would evidence, then the opinion on the record construction to place one shows minds; to our if State beyond be correct question, such and as a defense to act law, to have committed an forbidden by acts he- in did the a defense if fact act the on trial makes person mistake, then proof he did so alleged by innocently intent innocent similar offenses admissible to rebut proof other con- become the record we have or mistake. After renewed study to tended that the offered by only vinсed appellant act com- Moore was not at the time she committed Mrs. shows The evidence and this was defense of, upon. relied plained eight some seven or Mrs. her menstrual Moore had passed period went That she fearful that she was days, pregnant. she was remedied. this condition Appellant requested appellant without a month see her menstruation would not return wait do, declined to insisted appellant This operation. Mrs. appel- We the evidence demonstrates think performing operation. intent, did so for with the if Mrs. Moore lant an abortion. we have come to the This, conclu- pregnant, reasonable deduction us, evidence before sion, only she, issue that time not raise the performed oper- does thn Moore was not ation, only knew pregnant, performed a flow of the menses. But the acts bring performed оperation cause a flow of the menses in done to order about an- is, There to our if Mrs. Moore pregnant. mind, evir tended than the- dence offered or introduced were with the acts which intention of producing appellant original Mrs. Moore was In the pregnant. opinion abortion if hold that if the statute provides which quoted opinions conviction, intention, the State must order obtain a show guilty intent tended show the trial other offenses which person admissible, would even the evidence though offered issues of mistake innocent intent. We raise opine in which it was so does statutes those States held did not provide that “when the facts have been Code, our proved constitute *10 offense, it devolves to establish accused the facts or circum- excuse or stances on which he relies to prohibited act,” the- justify whenever means presumed “the intention commit offense Reports. 77 Texas 232 Criminal used are such as would result in the for- ordinarily commission of the bidden act.” 51 Penal (Arts. Code.) Under these provisions State, the Code it is the rule that in this when an law, accused is shown act committed an prohibited by there must be some evidence adduced on the that raising trial the issue the act was committed with result, no intent intent will presumed be from the the act which a doing of results in violation of the law. a case must theft, shown that be value, property taken with the intent the owner its deprive and with the intent to use such and benefit appropriate property of the same. But it person taking only taken, property accused took it had it in his pos session. Under such state facts our intent law presumes the owner of deprive it, the value of the intent to appropriate to the use of the taker, unless the raises elicitеd on the trial evidence issue it was mistake, taken under claim of or some right, by motive, innocent other a lack of intent and appropriate to take showing another’s If property. issue, the evidence raises such evidence of similar offenses is intent. admissible to rebut evidence of innocent In those cases admissible, which hold offenses it is other shown those cases raised only where evidence adduced on trial the issue be other might no intent evidence of guilty State, offenses became 41 admissible reason. Gilbraith v. Texas, 567; 381; v. Long State, v. 11 Texas Crim. Davidson App., State, Crim. 214; 12 Texas 14 State, App., McCall v. Texas Crim. App., State, 22 353; State, Holmes 509; v. 20 Texas Crim. Harwell v. App., 211; 251; Texas State, Rep., v. 31 Texas Crim. App., Kelly Crim. State, 40 Texas 43 Texas 184; State, Fielder v. Crim. Stanfield Rep., v. 10; Crim. v. Crim. 375. On Lynne State, Texas Rep., Rep., hand, it well State, other seems to be the settled rule in this when the on evidеnce adduced the trial leaves as to intent of, offenses, the act doing accused of other even complained proof kind, similar character is not issue of though of admissible State, State, 469; Harris v. 55 Texas Crim. v. Davenport intent. Rep., Clark v. 11; State, Crim. 59 Texas Crim. Rep., Rep., Texas 131; Bink S. v. Crim. State, 128 W. Texas Rep., Rep., 1075; State, v. Crim. Miller Johnson 57 Texas Rep., Rep., S. W. State, Rep., Crim. v. has writer the bench he
Since the had once before occasion 70 Texas investigate question (Bowman Rep., 22), Crim. court, and we there the decisions of this collated held proof intent, admissible to offenses unless trial it an issue adduced renders in the case, have again investigated the and our thus question, has been opinion expressed in view the Code, confirmed our Criminal intent provisions when will the means used are such would presumed ordinarily result commission of the offense complained of. In this to the re-reading have come record, conclusion that the *11 1915.] Gray v. The State.
sole defense relied on by appellant, shown was that testimony, Mrs. Moore the time she inserted rubber cath- pregnant eter in her womb. There was no of the fact that the denial catheter would and Mrs. Moore was if fact pregnant, even raise issue. tending
Under such are motion for re- opinion circumstances we trial hearing reversed, should the case and on another granted, and all evidence of other different offenses excluded. and
The motion for and reversed rehearing granted, judgment and remanded.
Reversed and remanded. Judge Presiding PRENDERGAST, orig Before the (dissenting). inal opinion was written I read carefully studied thoroughly evidence and record. then conclusion that appellant’s I reached the contention in the trial court that she not was, know only did not her, Mrs. Moore wаs when she the acts she did performed upon but also “that the acts simply she her were solely for the innocent suppressed intention of bringing menses of Mrs. Moore and not pregnant.” under she was belief carefully the motions more considering I have rehearing, again be, read and that can thoroughly record, studied the evidence than when I wrote the am confirmed original and I opinion, have however, strengthened original brethren, my opinion. My reached the other judgment conclusion. If they of course right, be reversed. should evidence,—only
I do propose give any detailed statement of the sufficient of it to I show how the conclusion I did and why I reached adhere to it.
Mrs. Sadie Moore was the first State’s witness. The substance she on direct examination was that March had been married about three months. “It short while just had been my since menstrual two weeks reckon.” That period,—about I date; knew went to her home and saw her said there that Mrs. Eob out her. (another went Moore) “I told done; I told wanted I her I wanted (appellant) . . abortion. . She I asked me how was and I her about far told something two weeks or ten that. days like There something about said pay,—defendant $10 charged and I her. I paid tube, on a couch and defendant down lay catheter, used a little rubber and she inserted into womb. my She cotton around put . left it in She there. . . catheter. The catheter inserted remained from womb about o’clock one my day until 11 o’clock I both . day, next removed the catheter and the . cotton. th.en the removal of the catheter and After cotton I sick; success- ful—my menstrual I period guess came from the womb after re- moval catheter cotton. There was also came else something womb, my but not very much of looked like a little anything—it Beports. 71? Tesas Criminal After substance, small, about dime. old white the size of a just very Nance;. three, this about two weeks I consulted with a physician—Dr. he came to put house and made an womb and my examination my an ice see side. I the doctor bag my just wanted come me and tell him what kind done; I had I kind of felt of bad just *12 there inflammation thought something.” I be some there might that then her Appellant took on cross-examination and had her testify she was nineteen when she and never had years age married married that before; child, she never ignorant had birth to was been, all such matters when she went to never see and had before appellant and knew little about that kind. pregnant reg- matters of very “My ular menstrual should period arrived time about along .have first of March and not about my time, that became period arriving I as to that uneasy my condition. There was condition nothing my aroused except monthly that missed my apprehension fact I had my and was I accustomed to not it.” That dis- period she first missing cussed her condition with said Mrs. Bob Moore,' who was and an older woman than and longer was, married she about told her her missing menstrual time; and the that Mrs. Moore told period Bob her she could out to go and she went there to her appellant, see mainly what and was, condition told the time she menses appellant had missed her that and “I was worried about my and she menstruation, asked her if could do to cause the anything menstruation resumption my or cause . to . ’round/ me ‘come She asked me how I long passed had I and told her all I knew about my period condition was that had my I She me missed told that she my period. would not make an examina- tion of me or to menstruation unless re- try my husband my it.” her to do She said that then- quested she tо her husband phoned he would and told her he leave it with her; that defendant not send did her but she went to defendant relieve voluntarily get help was her the situation that embarrassing her. “When I talked after defendant about and called seems had up my husband, it to me she said until the next month to something my waiting if see would not period come around That my doing without anything.” nervous at the she was time told very crying and defendant she have done she would going rather have it then. done further said after the She catheter was inserted in her womb her with cotton after it womb packed remained about twenty- four hours it the flow—more than “produced usual.” fur- Appellant had her “At the out testify: ther time I went defendant thought see know; but I did not I do swear suppose I was I could pregnant matter, I that was about the was; absolutely ’that I certain but thought I think then and still I was.” so she examination redirect she was her On testified with living him she аnd that the husband since married relations ordinary between wife existed between them, forty man and time during the within discovered that time she her ceased days menstruation had preceding her intercourse with husband. had sexual had Gray v. The State. 1915.] she her testify phoned had recross-examination appellant On thought told she 12th and her Eob Moore before March day Mrs. told me said, she “Mrs. Moore pregnant. might She her to go by unusual for lady conversation was not phone re- didn’t did; she menstrual remember she did period,” didn’t know whether she member her she telling or not. exam- direct Eob Moore. On The next witness Mrs. State’s was .said March she went occasion, 12, 1913,
ination said that on she said be- Moore conversation Mrs. Sadie house and heard the appellant’s Moore wanted Moore; tween Mrs. that Mrs. Sadie Sadie appellant began refused, Mrs. her and she Mrs. Sadie Moore Gray exаmine Moore to, if Mrs. her and Mrs. cry said would beg Gray husband, he husband; would Mrs. phone phoned would. ahead, and Mrs.. perfectly willing go Gray horse two hitched to the in which these ladies went buggy appellant’s got loose Mrs. Eob horse and Moore said she went to catch the returned see when she Moore; did to Sadie *13 Moore from the horse and Sadie was over Mrs. catching everything money was to ready that she that Moore took some go; knew Mrs. Sadie Mrs. her, $10; with and she defendant that she thought thinks paid Sadie Moore was to Mrs. Moore’s to be sick and went over Sadie going and just the next to her that she was get dinner, up found day help as she ever her. cheerful had seen On tell cross-examination Mrs. Moore to that appellant had Eob her had before, March Sadie Moore her she day 12th, passed Mrs. told to and period witness, some or nine that she asked eight days her, with her to to find whether was or go out out she appellant’s pregnant that just not. She “I do not remember she said it in said, whether me not, or to be examined. Mrs. Moore talked to but she wanted way to that and I tried convince pregnant, like she she was her thought she and not, she was but she because was so thought she was young days she time or nine eight said she had her inexperienced; just passed that was she was I pregnant. explained and reason she the.only thought when That to her that her was uncommon.” period nothing missing dinner, day with she went over next to Mrs. Sadie Moore her help men- she said me about having she said: “It seems to something aborted or delivered a child. struated but she nothing having right all . . her menstruation had come around Just stated that me that was anything that was all she told there right; and she never or unusual any the menstruation around dis.- coming unusual about' than were ones other only appеllant These witnesses two charges.” facts immediate its as to the case whom State could by herself thereof. of testimony the direct the State think examination by I Mrs. that showing purpose was for sole of these witnesses both her that the acts performed Sadie Moore was pregnant with that fact and the knowledge were performed appellant Eepoets. 77 Texas Ceiminal than hand,
no other intention to an abortion. On the produce other think the I cross-examination of both not only of these witnesses was for the not purpose show Mrs. Moore was attempting preg- nant, but was, she, did especially show if she appellant, it, not or know believe for she Mrs. her- had Moore to that she testify know, did self, Moore, Mrs. but or thought not simply believed and had the pregnant, Mrs. Moore to testify other that she tried convince Mrs. Moore that not Sadie she was but pregnant, simply unusual, her menses was for a suppressed not an days, few simply but that appel- condition married women. And ordinary lant the act did, simply not to abortion, but her solely for the innocent purpose intention bringing menses. From the suppressed course the whole cross-examination had mind, these two witnesses is the same as if the my appellant said to the trial Sadie court and “I not know jury: did her did she was. What did to pregnant,—I believe I was with no but was abortion, intention on an bring on her simply solely relieve her distress lady bring menses; suppressed her menses because suppressed cause, from other not unusual pregnancy which was some. other women.” This being I believe the witnesses abortions that' she had showing tending produced both women, other admissible. after, before and was clearly think doubt,
I there can be no made only appellant contention and showed implication both directly appear cross-examination of these make it witnesses, but she could mind, more or less can doubt plausible, none, my Mrs. Moore had not that what appellant her would menses what- unquestionably brought suppressed woman words, ever cause other than here pregnancy. with delayed suppressed menses. What did to her would menses, on her caused suppressed pregnancy whether *14 did equivo- other cause. Then was an unquestionably appellant cal act. The act was State contended bring an abortion and intent contended that only; true, that what she for the purpose done bringing on menses intent and with that delayed suppressed only. To menses if not bring but a crime commendable and innocent act. Hence, the application of the rule that of her like showing acts other women that her intention bring an abortion and not innocently menses, on suppressed was clearly admissible. affirmed,—not
I think the judgment should be reversed.