Thomas v. State

47 So. 257 | Ala. | 1908

ANDEBSON, J.

The indictment in the case at bar was framed under section 4305 of the Code of 1896, which both defines, as well as prescribes a punishment for, “attempts to procure abortion.” The statute makes the Code form of indictments sufficient in all cases in which said forms are applicable. Section 4894 of the Code of 1896; Bailey v. State, 99 Ala. 143, 13 South. 566. In statutory offenses, where no form of indictment is given, it is usually sufficient to follow the statute. In charging common-law offenses, although we have statutes fixing the punishment, and sometimes changing them from misdemeanors to felonies, and the reverse, where no form is prescribed, the indictment should be framed under the common law. — Goree v. State, 71 Ala. 7; Grattan v. State, 71 Ala. 344. But in cases where the statute, not only prescribes a punishment but also defines the offense, notwithstanding'a similar offense existed at common law, we think the indictment would be sufficient if the offense is described in the language of the statute or in words conveying the same meaning. Section 4898 of the Code of 1896; Clark v. State, 19 Ala 552. Speaking of indictments for this identical crime, Mr. Bishop in his work on Statutory Crimes (section 754), says: “Follow the Statute.— This rule is specially safe and in most instances sufficient, in various forms of the offense now under consideration. Rarely will the allegations require expansion beyond the statutory terms.”

We do not think it necessary to name the drug or instrument, nor to aver how the drug was administered or the instrument was used. — State v. Reed, 45 Ark. 333; State v. Vowter, 7 Blackf. (Ind.) 592; State v. Van Eouton, 37 Mo. 357; Watson v. State, 9 Tex. App. 237; Com. v. Morrison, 16 Gray (Mass.) 224; Rex v. Phillips, 3 Campbell, 73 (English.) Mr. Bishop concedes that most of our courts have held that it is not necessary to name the drug or substance, but says that this form lies close upon the border line, and observes that the English forms specify the drugs, and further remarks that “in justice to the defendant it would seem but equitable for the grand jury to say, if they know, what was the drug administered, or, if they do.not know, to allege their want of knowledge, whether the strict law requires it or not.” Yet he concedes that, if a drug different from the one named is proven, there would be no fatal variance. This eminent writer, in referring to the English form of indictment, may have been ' accurate in his statement that they specified the drug, yet he evidently failed to observe that the court, in the case in 3 Campbell, 73, held that it was unnecessary to aver the name of the drug, or that it was a noxious or destructive thing, and that a failure to prove the drug as alleged was not material. There are cases in which the drug or instrument have been named, and where the manner of using the instrument has been set out, in the indictment; but we think the weight of authority is to the effect that these averments are not essential to the sufficiency of the indictment. The indictment sufficiently avers the pregnancy of the woman at the time of the attempt to produce the abortion. The trial court did not err in overruling the demurrer to the indictment.

A majority of the court are of the opinion, that the action of the trial court in permitting the state to account for the absence of Onether Crawford was either not error, or, if error, that it was error without injury. The writer, with whom Justice DENSON concurs, thinks that this was reversible error. “The circumstance that a particular person, who is equally within the control of both parties is not called as a witness, is too often made the subject of comment before the jury. Such a fact lays no ground for a presumption against either party.” A presumption against a party for the nonproduction of a witness arises only when it is manifest that the evidence is only within the power of one party and is not accessible to his adversary. — Bates v. Morris, 101 Ala. 286, 13 South. 138; Brock v. State, 123 Ala. 26, 26 South. 329, and cases there cited. The witness, whether sick or well, was as accessible to one party as the other, and the failure to produce her, could create no presumption unfavorable to either. Yet to permit the state to give a reason for her absence, and to emphasize the fact, twice, that proof of her condition was for “the sole purpose of accounting for her absence,” was highly prejudicial to defendant.

The trial court did not err in permitting the state to prove the result of the examination by Dr. Brothers upon the person of Onether Crawford, as it was corroborative of the state’s theory of a miscarriage or abortion. Nor was there error in permitting the state to prove by the mother the previous condition of the woman, and that she had never been pregnant before, and had never had an operation performed upon her womb. Dr. Brothers had testified, that the rupture in the neck of the womb, could have only been caused by childbirth or by the use of instruments in the neck of the womb.

The trial court did not err in permitting the questions propounded to the defendant by the solicitor upon cross-examination. The defendant gave his opinion as to results of the medicine prescribed, and as an expert, and the questions asked, whether supported by the facts hypothesized or not, were competent to test his knowledge. Moreover, the scope of the cross-examination was largely within the discretion of the trial court.

There was no error in so much of the oral charge as was excepted to1 by the defendant.

If charges A, 13, and 16 were good, but which we do not decide, they were fully covered by charge 5 given at the request of the defendant.

Charge B, requested by the defendant, was properly refused. If not otherwise bad, it was clearly abstract. There was no proof whatever, that Matilda Sigler participated in or assisted in the crime.

Charge C, requested by the defendant, was properly refused. If not otherwise bad, it pretermits a reasonable doubt or uncertainty.

Charge 9, requested by the defendant, was properly refused. It is the general charge, and there was evidence authorizing a conviction. .

Charge 12, requested by the defendant, was manifestly misleading, if not otherwise bad. — Smith v. State, 118 Ala. 117, 24 South. 55. See given charge 6 at the request of the state.

Charge 14, requested by the defendant, was properly refused. The defendant may havé been treating the woman (at the time he gave her the medicine) with no intention of producing miscarriage; but he could have, nevertheless, willfully attempted to produce or produced one at the time testified to by the use of instruments.

Charge 15, requested by the defendant, was properly refused. If not otherwise bad, it confined the jury to a determination of the result of defendant’s action on Friday night, when there was proof that he used instruments on the woman the next morning, and which may have been with the intent to procure an abortion, and may have been the time when it was actually produced.

The judgment of the city court is affirmed.

Tyson, C. J., and Haralson, Dowdell, Simpson, and McClellan, JJ., concur. Anderson and Denson, JJ., dissent.