245 S.W. 438 | Tex. Crim. App. | 1922
The offense is abortion; punishment fixed at confinement in the penitentiary for a period of five years.
The State relied upon the testimony of Eunice Nicol, the woman upon whom the abortion was performed. She testified to facts which were sufficient to support the conviction. She was under indictment for the same offense and as an accomplice to the same offense. The appellant, upon the trial, took the position that it was his right to have the jury instructed that to support a conviction, her testimony would require corroboration. If she was connected with the offense in a criminal sense, that, is, if she was either a principal, accomplice or accessory, such a charge is necessary. O'Connor v. State, 28 Texas Crim. App., 288; Branch's Ann. Tex. P.C., sec. 702. The statute demands such a charge. Article 801, Code of Criminal Procedure. The refusal to give such an instruction to the jury is supported by the State on the proposition that the law is such that a woman who voluntarily submits to an abortion or advises, encourages or procures it to be done is not a principal offender nor accomplice. This seems to be the general rule, both in this State and in other States. Corpus Juris, Vol. 1, p. 315, secs. 17 to 19 inclusive; Miller v. State, 37 Tex.Crim. Rep.; Branch's Ann. Tex. P.C., Sec. 1821 and cases listed. It cannot be doubted that this rule is difficult to harmonize with the statute defining a principal, accomplice and accessory. See Vernon's Tex.Crim. Stat., Vol. 1. Chap. 1 and 2, Title 3. However, in the light of these statutes, the court has held in the cases mentioned that to such a state of facts the rule of accomplice testimony does not apply. Other statutes, however, bear upon the present question. In Article 791 of the Code of Criminal Procedure, it is said:
"Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced *17 as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others."
To the same effect is Article 91 of the Penal Code; also Article 727 of the Code of Crim. Procedure. The expressed opinion of this court has heretofore been that one indicted for the same offense as the person on trial was treated as an accomplice witness as a matter of law. See Stiles v. State,
Because of this error, the judgment is reversed and the cause remanded. Reversed and remanded. *18