author: PRENDERGAST, P. J.

text:
    DOOMS v. STATE.
    (No. 3615.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law <§=507 — “Accomplice” — Who is.
    A prostitute, who came to a hotel with a man as her husband and so registered, and who remained after he left, and who then employed for a money consideration a porter in the hotel to locate men in the hotel with whom she could have sexual intercourse, and who located men and directed them to her room, was an accomplice of the porter, indicted for alluring a female to visit a room for immoral purposes, in violation of Pen. Code 1911, art. 498.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <§= 507.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Joe Dooms was convicted of crime, and lie appeals.
    Reversed and remanded.
    Guynes & Colgin, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., ifor the State.
   PRENDERGAST, P. J.

Appellant was convicted, in that he “did unlawfully invite, solicit, procure, and allure Grace Johnson, a female to visit and be at a room in the Mecca Hotel, in the city of Houston, for the purpose of meeting and having unlawful sexual intercourse with a male person,” under Article 498, P. C.

The testimony of Grace Johnson, upon which the state solely relied for a conviction, showed: That she was a common prostitute, and frequented the hotels in Houston to ply her vocation. The hotels did not know her, nor know she thus worked their hotels. That she went to the Mecca with a man as her husband, and so registered, and stayed one night with him. He left next morning. She remained. She then employed appellant, a bell boy and porter in the Mecca, “to make dates for her” — that is, seek and locate men in the hotel with whom she could have unlawful sexual intercourse. She paid him for this. What he did was to thus locate men who were willing to accept her “services,” and then tell her the room they occupied, and she would then go there and have such intercourse. Such men would be utter strangers to her. She, on this occasion, fulfilled one of her engagements thus made by appellant for her and at her special instance.

We think this made her an accomplice., The court refused to so charge the jury. In this the court erred, for which the judgment must be reversed. See Bill Denman v. State, 177 S. W. 120, this day decided in an opinion by Judge Harper; also a case by the same appellant, 178 S. W. 332, in an opinion by Judge Davidson.

Reversed and remanded.


source: Caselaw Access Project

author: HARPER, J. PRENDBRGAST, P. J.

license: Public Domain

text:
    BURTON v. STATE.
    (No. 3532.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    State’s Rehearing Denied June 2, 1915.)
    1. Homicide <§=295 — Instructions—Degree oh Ohfense — Adequate Cause — “Immediate Influence oh Sudden Passion.”
    On a trial for homicide, the court charged that by the expression “under the immediate influence of sudden passion” was meant that the provocation must arise at the time of the commission of the offense, and that the passion was not the result of former provocation, that the act must be directly caused by the passion arising out of the provocation, and that it was not enough that the mind was merely agitated by passion arising from such other provocation. Held that, though this was correct so far as it went, where manslaughter was in the case by reason of antecedent circumstances also operating on accused’s mind, the court should have further charged that in determining whether tbe provocation at the time of the killing was adequate cause to produce a state of mind incapable of cool reflection the jury should consider all the facts and circumstances in evidence, and that, if they found that the provocation occurring at the time, viewed in the light of the antecedent circumstances, was such as to produce, and in fact did produce, such a state of mind, the killing would be manslaughter.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 606-609; Dee. Dig. <§=295.
    For other definitions, see Words and Phrases, Second Series, Immediate Influence.)
    2. Criminal Law <§=814 —Instructions,— Applicability to Case.
    The failure of a charge on manslaughter to properly submit the issue of adequate cause is not error if no such issue is in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839,1860,1365, 18S3, 1890, 1924, 1979-1985, 1987; Dec. Dig. <§=814.]
    3. Homicide <§=42 — Adequate Cause — Statutory Provisions.
    The circumstances and conditions which constitute adequate cause to reduce a homicide to manslaughter are not restricted to those named in the statute.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 65, 66; Dec. Dig. <§=42.)
    4. Homicide <§=271 — Questions hor Jury-Adequate Cause.
    If there is evidence which supports the theory of adequate cause, the court may not judge of its probable truth, but should leave it to the jury under proper instructions.
    [Ed. Note. — For other eases, see ' Homicide, Cent. Dig. § 565; Dec. Dig. <§=271.]
    5. Homicide <§=271 — Instructions — Manslaughter.
    On the trial of a tenant for killing his landlord, there was evidence for accused that the landlord was trying to put him off of the place in the middle of the year, with considerably less property than he was entitled to, that when the landlord offered to let him take such property he had his hand on his pistol, and when accused declined the offer said, “You will take this;” that accused became alarmed and' went to a blacksmith shop some distance away; that, 'though this was not the usual road of travel, the landlord drove down by the blacksmith shop, with the lines in his left hand, and his right hand in the pocket where accused had seen the pistol; that accused grabbed his gun and ordered the landlord to drop the pistol; but that, instead of dropping it, he looked as if he was trying to get it out of his pocket. The state’s evidence tended to show that the landlord was using both hands in driving the team, and did not attempt to get his pistol until accused grabbed his gun and ordered Mm to drop the pistol. Seld, that this made a question whether the antecedent circumstances, in connection with the landlord’s conduct at the time of the killing, engendered in accused’s mind such a degree of anger, rage, or resentment as rendered him incapable of cool reflection, and the failure to properly submit this issue was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dec. Dig. <§=»271.]
    6. Homicide <@=»16A-Evidencb — Admissibility.
    Evidence as to the landlord’s weight and height was material to no issue in the case, and should not have been admitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § SIS; Dec. Dig. <3=>104.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Roberts County; P. P. Greever, Judge.
    J. N. Burton was convicted of murder, and he appeals.
    Reversed and remanded.
    J. P. Cunningham, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The killing took place in Lipscomb county on the 20th of July last. The venue was changed to Roberts county, and when tried appellant was adjudged guilty of murder, and his punishment was assessed at seven years’ confinement in the state penitentiary.

There is but one serious question in the case: Does the evidence raise the issue of manslaughter? The trial court seemed to think so, and submitted that issue to the jury, but, if the evidence raises the issue, the charge, as given, was not applicable to the facts in the case. He instructed the jury:

“By the expression ‘under the immediate influence of sudden passion’ is meant: (1) That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of former provocation; (2) the act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation.”

This defines adequate cause as it is defined in the statute, and, so far as it went, it is a correct exposition of the law. But, if there is manslaughter in this case, it is by reason of the antecedent circumstances operating on the mind of defendant in connection with what took place at the time of the killing, and the court, while instructing that the provocation must arise at the time of the killing, should also have instructed that, in passing on whether the provocation that did occur at the time of the killing would be adequate cause to produce a state of anger, rage, sudden resentment, or terror rendering the mind incapable of cool reflection, they should take into consideration all the facts and circumstances in evidence, and, if they found that the provocation occurring at the time, viewed in the light of the antecedent circumstances, was such as to produce, and in fact did produce, such a state of mind, the killing would be of no higher grade of offense than manslaughter. The state’s evidence supports a finding that the killing was of the grade of murder, and, unless the evidence in the case raises the issue of manslaughter, the judgment should be affirmed, for an error in the charge on manslaughter in not properly submitting the issue of adequate cause would not present error, if, in fact, no such issue is in the case. Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105. It is the general rule that the circumstances and conditions which constitute adequate cause are not restricted to those named in the statute; other causes may exist, and, if there is evidence which supports the theory of adequate cause, the court is not to judge of its probable truth, but should leave 'it to the jury under proper instructions. Wadlington v. State, 19 Tex. App. 273; Childers v. State, 33 Tex. Cr. R. 512, 27 S. W. 133; Rice v. State, 51 Tex. Cr. R. 285, 103 S. W. 1156; Sterling v. State, 15 Tex. App. 257; West v. State, 2 Tex. App. 460; Johnson v. State, 43 Tex. 615. Of course, if the evidence only raises the issues of murder and perfect self-defense, no charge on manslaughter is required. An act, standing alone, may not be sufficient, but may be ample when preceded by an aggravating course of conduct. Johnson v. State, 22 Tex. App. 226, 2 S. W. 609; Lienpo v. State, 28 Tex. App. 179, 12 S. W. 588; Baltrip v. State, 30 Tex. App. 548, 17 S. W. 1106; Adams v. State, 42 Tex. Cr. R. 366, 60 S. W. 47.

With these well-established rules of law in mind, do the facts and circumstances in the case raise the issue of manslaughter with that force and cogency as to require a correct charge applicable to the facts in evidence to be given?

Appellant was the tenant of W. H. Parker, the deceased, and had been his tenant for some four years, but this summer, over some disagreement, not made clear by the record, deceased became desirous of severing that relation. Appellant was cropping on shares. In addition to the usual one-half of the crop raised, he was to attend to deceased’s stock, and was to receive as compensation therefor one-half the increase of the stock. Appellant says that during the years he had been on deceased’s farm and ranch, as increase there were 17 head of horses and colts, and 47 head of cows and calves, of which he would be entitled to one-half. Deceased’s son, Yernon Parker, admits that appellant had this trade with his father, but his understanding was that his father had paid appellant for his interest in the horses. Appellant says he had an interest in the plow, tools, and harness, and the wagon was Ms own. Appellant says that in 1914 there was made on the place 3,500 bushels of wheat, 980 bushels of barley and oats, and 160 acres planted in kaffir corn and maize, one-half of all of which he was entitled to. It further appears by the record that appellant was indebted to the merchants with whom he traded about $800, for wMeh sum Mr. Parker, the deceased, was surety. It does not appear that appellant owed any other debts except to his farm help. On Tuesday of the week before the homicide appellant sent two loads of wheat to market and had the proceeds placed to his credit at the bank. Deceased, learning of this, had the money changed to his credit. On Friday before the homicide appellant started two more loads of wheat to the market, and one of the drivers of the wagons, Williams, says :

That night deceased came to where they were camping and asked what they had done with the other wheat, and when he told him he placed the money to Mr. Burton’s credit “he said, ‘What are you going to do with this?’ I said, T am going to do the same thing.’ He said, ‘No; you cannot do that.’ I said, ‘Why?’ and he said, ‘Because I am not going to let you do it.’ That kind of got me to studying, and he said he would stand between me and Mr. Burton. I said, ‘Mr. Burton will charge me up with that wheat;’ and he agreed to stand between us, and I did that. That was not all of the conversation. He told me that he was going up there to the ranch on Monday, and he was going up there and make Burton move off. He said, ‘Burton can take three horses, one set of harness, one wagon, and what traps he had and throw them in the wagon and move.’ He did not tell me to tell Burton that. I did not say anything to him in particular. I told him I did not think he could scare Mr. Burton. I did not think he is that kind of a man. He did not exactly say how he was going to move him off. He said he would not take his six-shooter with him when he went up there, fie said he would leave that at home. He said, ‘If I take it up there, I am liable to kill him.’ ”

Mr. Ammerman, the other driver, says:

“The conversation came uip about the wheat check, about who was to get the checks, money for the wheat. We told him how it was to be. My cousin was with me. He hauled a load before that. He asked him what he done with it. He told him that he deposited the money to Mr. Burton. Mr. Williams is my cousin. He asked him what he was going to do with that. We told him the same as we did with tire other. He objected, and said he would not stand for that, for us to sell the wheat that way. We told him we would have to sell it that way. He said he wouldn’t let us sell it that way. He went on and said about what he was going to do. He said he was going to Higgins when he got to Glazier and get some papers made ou|t to get possession of the place. He was going up there and run. Mr. Burton off the place. He was going up there on Monday. He said he was going to let him take three horses, a wagon, a ret of harness, and what old traps he could get in the wagon. He went on and said that he would have to leave his gun at home. Well, he said if he didn’t— he used a little language that don’t go well before ladies — he said if he didn’t leave Ms gun to home, he might have to kill the old son of a bitch.”

These men say when they returned on Sunday Mgbt they did not tell Mr. Burton what Mr. Parker bad said; only told Mm about Mr. Parker meeting them and taking the money for the wheat.

On Saturday Mr. Parker did sue out distress proceedings, but, not being made out correctly, he decided to go to the farm Monday and see if he could not settle the matter, making arrangements with Dr. Newland, if he could not settle, he would phone him, and for Dr. Newland to come after him in an automobile, and he would sue out a distress warrant. After he decided to go to the farm he had his pistol cleaned, the sheriff saying he advised him not to take it with Mm, and Mr. Parker said he would not do so. However, he did take the pistol with him, and had it in his right-hand pants pocket. On Monday deceased and his son drove to the farm, finding appellant in the blacksmith shop. Appellant says he saw the pistol while they were at the shop, but, a§ deceased said he came after a load of wheat, they all went to the field together and loaded the wagon with wheat. After the wheat was loaded, the versions of Vernon Parker and appellant differ in some particulars. Vernon says when the wagon was loaded his father told Mr. Burton he had a proposition to make him; that Burton sat down on his bucket, when his father told him he would let him (Burton) have the wagon, one or two sets of harness, and three or four horses that he claimed, pay two hands, and give him 100 acres of the maize and kaffir com; that he (deceased) would have to pay the store bill, and it would take the 'remainder to pay it. Burton declined the proposition, and got up and went to the blacksmith shop, 300 yards distant. Burton says: That when the wagon was loaded deceased placed his hand on his pistol, and told him he had a proposition to make to him; that he would let him have the four horses, one set of harness and the wagon, and he must move right off. That, when he declined this proposition, deceased said, “You will take this.” Becoming alarmed, he left and went to the blacksmith shop.

It further appears that when they drove out of the field there were two roads — one that led in the direction of Parker’s home, and the one he usually traveled; the other went by the blacksmith shop, whore Burton had gone, and on by to the barn. Vernon says the reason they took this road they did so to go by the barn to get some oats. Burton was not made aware of this fact. Vernon says his father was using both hands in driving the team, and just as he got past the blacksmith shop Burton jumped out, with a shotgun leveled, and said, “Parker, drop that gun or I will kill you;” that his father then reached for his pistol, and Burton fired, killing him. Burton says he supposed by Parker taking tMs road he was coming to the shop to again take up the settlement and put him off the place; that when he looked Parker had the lines in his left hand, Ms right hand being in his pocket where he had seen the pistol; that he grabbed his gun and said, “Parker, drop that gun,” hut, instead of dropping it, he looked as if he was trying to get it out of his pocket, and he shot.

It is thus seen that what took place at the immediate time of the shooting would present the issue of self-defense, from appellant’s standpoint, and the acts and conduct there alone would not be adequate cause to reduce the offense to manslaughter, nor raise that issue, but, if deceased was driving along, and Burton jumped out before Parker made any demonstration and told him to “drop the gun,” and then it was Parker attempted to get Ms pistol, it would be murder. But, to view the entire case from appellant’s standpoint, he contends that he was entitled to one-half interest in 17 head of horses, 45 head of cattle, one-half of 3,500 bushels of wheat, and one-half of the oats, barley, kaffir corn, and milo maize, and, if so, he would be more than able to pay the $800 debt; in fact, there would be left a surplus of some $500 or $1,000 as his part. Parker was trying to put him off the place in the middle of the year — in July. He had sent wheat to town, and Parker had intercepted it, and appropriated the proceeds, and then came out armed, and told him he must accept his proposition, take four head of horses, a set of harness, and a wagon, and move off. He left the field, and, if Parker had gone his usual road of travel, there apparently would have been no killing that day. But, viewing the matter from Burton’s standpoint, and as he testifies, Parker does not take the usual road of travel, but takes one that will carry him directly to or by the blacksmith shop, puts his right hand on his pistol, and drives directly towards where Burton had gone; Burton saying he thought he was coming to force him to accept Ms proposition and move off. Would this conduct, viewing it as it appeared to Burton, in the light of the preceding matters, be likely to engender in an ordinary mind that degree of anger, rage, or resentment as would likely render his mind incapable of cool reflection? If so, it would be proper to submit that issue to the jury, and, if they so found, he would be guilty of manslaughter, and not murder. We have read this record more than once, and we are of the opinion that it raises the issue of manslaughter, viewed in the light of all the circumstances in the case, and the court erred in not instructing the jury the law of manslaughter as applicable to that state of facts — in passing on the provocation at the time they should take into consideration all the antecedent circumstances in evidence.

While we would not reverse because evidence of the weight and height of Parker was admitted in evidence, yet such testimony is material to no issue in the case, and on another trial it should not be admitted.

The judgment is reversed, and the cause remanded.

PRENDBRGAST, P. J.

(dissenting). A careful consideration of all the evidence demonstrates manslaughter is not raised. Self-defense only was. The court charged fully on self-defense. TMs judgment should be affirmed, and not reversed.
      <@^5>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. DAVIDSON, J. HARPER, J. PRENDGERGAST, P. J.

text:
    GRAY v. STATE.
    (No. 3499.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.
    On Motion for Rehearing, June 9, 1915.
    State’s Motion for Rehearing Denied June 25, 1915.)
    1. Abortion <&wkey;5 — Ikdictment—Sufficien-cy — “Phesnancy.”
    Code Cr. Proe. 1911, art. 451, subd. 7, declares that the offense must be set forth in plain and intelligible words, while article 453 declares that the certainty required in an indictment is such as will enable accused to plead the judgment that may be given upon it in bar of any other prosecution for the same offense. Article 461 declares that, when a statute creating or defining an offense uses special or particular terms, an indictment on it may use the general terms which in common language embraces the special terms. Article 474 declares that words used in a statute to define an offense need not be strictly pursued in the indictment. Pen. Code 1911, art. 1071, declares that,, if any person shall designedly use toward a pregnant woman any violence or means externally or internally to procure an abortion shall be punished, and that by the term “abortion” is meant that the life of the fetus or embryo shall be destroyed. An indictment enlarged that accused did unlawfully and designedly make an assault on a pregnant woman, and, with the woman’s consent used means calculated to produce, and which did produce, an abortion on the woman, who was then pregnant. Held, that, as the term “abortion” generally means the premature delivery of the fetus or a miscarriage, and the term “pregnancy” includes the entire time from conception to delivery, the indictment charged the offense of abortion.
    [Ed. Note. — For other cases, see Abortion, Cent. Dig. §§ 8-14; Dec. Dig. <§=^5.
    For other definitions, see Words and Phrases, First Series, Pregnant; also First and Second Sei-ies, Abortion.]
    2. CRIMINAL Daw <&wkey;507.
    A woman permitting another to commit an abortion’ on her is not an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1082-1096; Dtec. Dig. 507.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    3. Criminal Law &wkey;>783% — Examination-Cross-examination.
    Accused is not entitled to have the jury charged to disregard evidence which she brought out on cross-examining a state’s witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1879, 1986; Dec. Dig. &wkey; 783
    4. Criminal Law &wkey;>1091 — Appeai>-Bill of Exceptions.
    A bill of exceptions reciting that the prosecuting witness was allowed to testify that she had heard that accused, who was charged with performing an abortion on the witness, had performed such operation before, was too meager to warrant a review where nothing else appears.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2S15, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843. 2931-2933, 2943; Dec. Dig. <§=1091.]

      5. CRIMINAL LAW <&wkey;1169 — APPEAI>—HARMLESS Error.
    Where the court directed the jury to disregard testimony, the erroneous admission thereof was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. @=51169.]
    6. Criminal Law &wkey;>824 — Instructions — Request For.
    Under the act of April 5, 1913 (Acts 33d Leg. c. 138), accused cannot complain of an omission in the charges given where she requested no charges.
    [Ed. Note. — For other- eases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. <S&wkey; 824.]
    On Motion for Rehearing.
    7. Criminal Law <&wkey;371 — Evidence—Other Owenses.
    Where accused is shown to have committed an act forbidden by law, and makes defense that, if she did the facts alleged, she did so innocently or by mistake, proof of other similar offenses is admissible to rebut the defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. i&wkey;> 371.]
    8. Criminal Law <&wkey;371 — Evidence—Other Oeeenses.
    In view of Pen. Code, 1911, arts. 51, 52, declaring that, when facts have been proven which constitute the offense, it devolves upon accused to establish the facts on which he relies to excuse the prohibited act, and that the intention to commit an offense is presumed whenever the means used are such as would ordinarily result from the commission of the forbidden act, evidence of other offenses is not admissible in a prosecution for abortion, where the evidence showed that accused intended to commit an abortion if the woman was pregnant, and the only issue was her pregnancy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. c@=> 371.]
    Prendergast, P. J., dissenting.
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    M. E. Gray was convicted of abortion, and appeals.
    Reversed and remanded.
    W. W. Nelms and E. J. Gibson, both of Dallas, for appellant. Mike T. Lively, Co. Atty., of Dallas, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and convicted of abortion.

Prior to the act of March 20, 1907, amending article 1071 (641) of our Penal Code, the offense of abortion, as applicable to this case, was thus defined:

“If any person shall designedly * * * use toward” a pregnant woman, with her consent, “any violence, or means whatever', externally or internally applied and shall thereby procure an abortion, he shall be punished,” etc.

Said act of 1907 re-enacted said article, making no change therein applicable hereto, except it added a separate paragraph in these words:

“By the term ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the mother’s womb, or that a premature birth thereof be caused.”

So that the offense applicable herein by said statute, leaving out the unnecessary matters, is in this language:

“If any person shall designedly * * * use toward” a pregnant woman, with her consent, “any violence or means whatever, externally or internally applied, and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years. * * * ”

By the term “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb, or that a premature birth thereof be caused.

The indictment in this case has more than one count. The trial court, however, restricted the case toi the second count. After the other necessary averments in every indictment said count is as follows:

That M. E. Gray, on March 12, 1913, “did unlawfully, willfully, and designedly make an assault in and upon the person of one Sadie Moore, a pregnant woman, and did then and there, with the consent of the said Sadie Moore, insert, thrust, and force into the private parts and womb of the said- Sadie Moore a certain rubber instrument, to wit, a catheter, then and there calculated to produce an abortion and miscarriage of her, the said Sadie Moore, and that by the means aforesaid, she, the said M. E. Gray, did then and there produce an abortion of the said Sadie Moore of the child wherewith she, the said Sadie Moore, was then and there so pregnant.”

Appellant’s contention is that this indictment is fatally defective because it fails to allege that by reason of the-means applied to said Mrs. Moore “the life of the fetus or embryo in the womb was destroyed, or that a premature birth from the womb was caused.”

A careful review of the authorities indicate that at common law an abortion could not be produced upon a woman unless and until the child was “quick” within' her womb. The courts of our various states differ as to this, most of them holding that an abortion can be produced at any time after conception and before the woman was “quick” with child. We, of course, do not know for certain why our Legislature added said clause to article 1071, quoted above, as it did, unless it be for fear that the courts of this state might hold that an abortion could not be produced on a woman, unless she was “quick” with child, as contradistinguished from being pregnant, and the stage of pregnancy only embracing the early stages of the embryo or fetus. As we understand this addition to this article, it was not intended, and should not be construed, to restrict the definition of abortion, but to add to it instead, and to prevent that construction of the article as it formerly existed in the particulars mentioned.

In testing the sufficiency of an indictment under our law', we must necessarily be governed largely, if not wholly, by our Codes. Of course, there are general principles which are also applicable. Now, let us look to these statutory provisions. .

Article 451, subd. 7, 0. 0. P., in prescribing tbe requisites of an indictment, says:

“The offense must be set forth in plain and intelligible words.”

Article 453 says:

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

These articles were incorporated in our Code when originally enacted in 1856. The tendency of the courts then, and for some time afterwards, was to construe indictments strictly; so much so that the Legislature, by Act March 26, 1881, p. 60, undertook by legislative enactment to do away with this strict construction and by that act added, among others, articles 460, 461, and 474. By article 460 it is enacted that:

An indictment “shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.”

And then further says certain words in no case are necessary.

Article 461 is:

“When a statute creating or defining an offense uses special or particular tei-ms an indictment on it may use the general terms which in common language embraces the special terms.”

Article 474 is:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

Tested by these statutes, we think it clear that the indictment in this case is sufficient as drawn, and that it is not fatally defective in that it does not contain the additional averments which appellant contends it should have contained. We are not holding that it may not have been proper to add, under the special facts of this case, what appellant contends for. It may be that that allegation would not have been improper. What we hold is that the indictment, as written, is sufficient. We think the indictment, as written, is unquestionably of that certainty which will enable the accused to plead the judgment herein given upon it in bar .of any other prosecution for the same offense; also that it charges the offense in such ordinary and concise language as to have enabled appellant or any other person of common understanding to know what is meant, and to give her notice of the particular offense with which she was charged, and to enable the court to pronounce the proper judgment of conviction. We also think that the special or- particular language defining what the word “abortion” means is clearly embraced in the general terms used in the indictment, and that the general terms used embraces the special or particular definition embraced by the addition to the article in the act of 1907, and that the general words used in the indictment include the special terms in the law added by the act of 1907, and include the sense of the whole of the statutory words.

We have many statutes prescribing offenses in given words and language, and then some words in the statute making the offense are defined. As we understand, as a rule, it is never necessary in the indictment to allege the offense by defining the meaning of the several words in the statute, although prescribed by the statute itself. Take, for instance, our manslaughter statute (article 1128, P. C.). It says:

“Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law.”

Then follow articles defining certain words and terms used, thus defining what is meant by “under the immediate influence of sudden passion” ; then defines “adequate cause,” and prescribes some of the things which are adequate cause and some which are not. It has never been held necessary, and we think could not be, that an indictment for manslaughter should specifically allege what the terms and words used in the statute mean as defined and described by other provisions.

“Pregnancy is defined with reference to a woman as the state of being with child, and is used to designate the -condition of a woman from the moment of conception until she has been delivered of the child.” 1 Corpus Juris, 312; 1 A. & E. Ency. of Law & Prac. p. 116.
“Pregnancy extends from the whole period from the earliest conception to the actual expulsion of the fetus.” State v. Howard, 32 Vt. 380.

In 1 A. & E. Ency. of Law & Prac. p. 113, it is said:

“Abortion is the act of miscarrying or producing young before the actual time and before the fetus is perfectly formed; and to cause or procure an abortion is to cause or procure this premature bringing forth of the fetus. Though the word does not of itself import a crime, and does not always occur in the statutes, yet it has become a term of legal classification, and is now generally, if not universally, used to designate the crime of causing the premature bringing forth of the human fetus, so far as that act is a crime at common law or has been made so by statute.”

In 1 Standard Ency. of Prac. p. 94, it is said:

“The word ‘abortion’ in common terminology means the premature delivery of a human fetus. ‘By abortion we understand the act of miscarrying, or producing young before the natural time, or before the fetus is perfectly formed. And to cause or produce an abortion is to cause or produce this premature bringing forth of this fetus.’ * * * The crime of abortion under modern statutes is the unlawful act of causing a woman to miscarry or abort, through the use of artificial means.”

Appellant next contends that tbe evidence was insufficient to sustain the verdict, in that the evidence fails to show that said Mrs. Moore was pregnant at the time the appellant committed the acts that she was shown to have committed towards her. We have carefully read and studied the statement of facts. Of. course, it was necessary for the state to proye that Mrs. Moore was pregnant at the time. The court, in his charge on this point, gave a correct charge on circumstantial evidence, and in accordance therewith required the jury to believe specifically that said Mrs. Moore was pregnant at the time, before they could convict, and if the jury had a reasonable doubt of it to acquit her. We can see no useful purpose in stating the testimony. In our opinion, it was amply sufficient to meet the requirements of a charge on circumstantial evidence, and from it the jury could find, as they did, that Mrs. Moore was pregnant at the time.

Over appellant’s objections, the court permitted the introduction by the state of the testimony of Mrs. D.uke, Mrs. Selby, E. J. Erwin, and W. B. Roddy to facts which would tend to show, and .from which the jury were authorized to believe, that the appellant produced abortions on other women, both before and after the acts committed by her upon the said Mrs. Moore. It is unquestionably the rule in this state, established by all the text-books and a great many decisions of this court, that ordinarily evidence of extraneous or other crimes are inadmissible; that an accused must be tried alone for the crime with which he is charged; and that it is not admissible to prove him guilty in a given ease by proving' that he is a criminal generally, or committed other like crimes. See section 338, Branch’s Or. Law, where some of the cases are collated. Appellant, however, recognizes that proof of such extraneous crimes are admissible when they tend to show intent, knowledge, etc. There can be no question but that, whenever knowledge and intent are necessary to be shown, evidence of extraneous crimes tending to show or showing this is admissible.

Our statutes create some offenses where intention or knowledge is not material. In most crimes, however, intention and knowledge are not only -essential, but must be proven. Under our law, if there is any crime more than another which requires that knowledge and intent is necessary, it occurs to us that that offense is the offense of abortion. Intent and knowledge are the very gist of the offense of abortion. .

Mr. Bishop says in the crime of abortion the evil intent “is an element indispensable to the offense.” Bish. on Stat. Cr. § 747, p. 449. In 1 A. & E. Ency. of Law & Prac, p. 146, it is said: “Intent, being-an essential ingredient of the crime [abortion] must be proved.” As we understand, all authorities hold that this is essential. It is unnecessary to collate them.

It is perfectly manifest from the record in this case, and the statement of facts, that appellant’s contention, to prevent conviction, was twofold: First, that said Mrs. Moore was not pregnant, and that appellant did not know it if she was; and, second, that the acts she performed upon her were solely and simply for the innocent purpose and inten- j tion of bringing on the suppressed menses of Mrs. Moore under the belief that she was not pregnant. With the issues thus drawn there can be no doubt but that it was absolutely essential on the part of the state to introduce proof of any and all pertinent facts that would show or tend to show both knowledge of Mrs. Moore’s pregnant condition and appellant’s evil intention of producing an abortion upon her.

In 7 Ency. of Ev. p. 627, it is said:

“In all cases in which the guilty knowledge or intent of a party in the act or transaction in question is an essential element, evidence of other general acts or offenses committed by such party or in which he bore a part, and happening at or about the same time, is relevant and competent to show intent” — citing, besides English decisions, and from the United States Supreme Court, the decisions of 39 of the other states of the United States.

1 Whart. on Or. Ev., after laying down the general rule that proof of collateral offenses are inadmissible, in section 31 says, “Certain exceptions exist, however, to the rule just stated;” and then he enumerates nine specially. Among them is: (3) To prove scienter or guilty knowledge; (4) to prove intent. To the same effect see section 1126, Bish. New Cr. Proc.; also 1 Greenl. on Ev. § 53; 1 Jones on Ev. § 143; 1 Wigmore on Ev. § 302; 4 Chamberlayne on Ev. § 3222; Underhill on Ev. § 89. In fact, every other textbook writer on the subject of evidence lays down and applies the same rule.

Mr. Underhill in section 89 says:

“Another exception to the rule occurs when the intention present in an act is material. Thus suppose the question is: Was a given act, either by the accused, or by some other person, intentional or accidental? Here it is relevant to prove that the person whose intention is in question had performed acts of a precisely similar nature either before or after the act the intention of which is in question. And, if it be found that he has performed many such acts, we have the best of grounds for drawing the conclusion that the act, in the present instance, is intentional, and not accidental. So, where the commission of an act alleged to be a crime is admitted by the accused, but he denies that he intended to commit it or alleges that he did it without guilty knowledge, his doing similar acts, wholly independent and unconnected with that under investigation, is relevant to show intention.”

Jones on Evidence, vol. 1, p. 725, in the latest edition of his work, after laying down and discussing the rules as stated, says:

“Formerly there was a clear distinction made between two classes of cases: (1) Where the intent with which an alleged offense was committed is equivocal, and such intent becomes an issue at the trial, proof of the commission of other similar offenses, within certain reasonable limits, is admissible, as tending to throw light upon the intentions of the accused in doing the act complained of; (2) where, from the nature of the offense under inquiry, proof of its commission as charged carries with it the evident implication of a criminal intent, evidence of the perpetration, or attempted perpetration, of other like offenses will not be admitted. That distinction does not appear to have been warranted, and the more modern law may be taken to be that, notwithstanding there may be other proof of intent in the case, rendering evidence of another crime' unnecessary, yet the prosecution is not thereby debarred from making all the proof possible on the subject, and consequently, in such a case, may introduce evidence of the other crime.”

Almost every one of the above text-books specifically state that such, evidence of other crimes are admissible in a ease of abortion. Our own statute (article 1, C. C. P.), in stating the object of the Code, says:

“It seeks : * * * (4) To bring to the investigation of every offense on the trial all the evidence tending to produce conviction or acquittal.”

That such independent crimes are admissible to prove intent and knowledge has been held and applied in a great many of the decisions of this court; in fact, we know of no decision of this court where the contrary is held. Persons v. State, 3 Tex. App. 240; Francis v. State, 7 Tex. App. 515; Jones v. State, 14 Tex. App. 85; Martin v. State, 28 Tex. App. 364, 13 S. W. 151; Street v. State, 7 Tex. App. 5; Gilbraith v. State, 41 Tex. 567; Cesure v. State, 1 Tex. App. 19; Fore v. State, 5 Tex. App. 251; Davison v. State, 12 Tex. App. 218; House v. State, 16 Tex. App. 25; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656; Nixon v. State, 31 Tex. Cr. R. 205, 20 S. W. 364; Ware v. State, 36 Tex. Cr. R. 597, 38 S. W. 198; Reese v. State, 44 Tex. Cr. R. 34, 68 S. W. 283; Wyatt v. State, 55 Tex. Cr. R. 73, 114 S. W. 812; McGlasson v. State, 37 Tex. Cr. R. 620, 40 S. W. 503, 66 Am. St. Rep. 842; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58. The court gave appellant’s special charge properly limiting for what purpose the jury could consider the testimony of said witnesses. In our opinion, the testimony of all the witnesses objected to was clearly admissible.

It has been so many times decided by this court that the woman upon whom an abortion is committed is not an accomplice that we regard the question as settled. Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Willingham v. State, 33 Tex. Cr. R. 99, 25 S. W. 424; Watson v. State, 9 Tex. App. 237; Fondren v. State, 169 S. W. 418. Mrs. Rob Moore was not an accomplice, and no charge thereabout was necessary or proper.

As shown by the record, the appellant, on cross-examination of Mr. Reynolds, the sheriff, sought to show his ill feeling and hostility to appellant in order to discredit his testimony against her, and in cross-examination on the point had him testify that he, with the other white people in his community, resented the fact that appellant had bought a place in their community and moved into it, “not because she was a negro, but because she is a character.” The court therefore did not err in refusing to charge the jury not to consider the said sheriff’s testimony to the effect that she was a professional abortionist; the court explaining that the testimony on the subject was brought out and introduced by appellant.

Appellant’s bill No. 12, after the style and number of the cause and the usual “be it remembered,” states:

“That when the prosecuting witness, Mrs. Streeter Moore, was giving her testimony, she was permitted to testify in answer to a question propounded by the state’s counsel that she, the witness, heard before she went to the defendant that the defendant performed abortions.”

This is, in substance, the whole of the bill, except the objections to said testimony which followed. Under all the rules this bill is too meager and insufficient to require the court to pass upon the question. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Best v. State, 72 Tex. Cr. R. 201, 164 S. W. 997. The trial judge, in approving this bill, qualified it by stating that, while he at first admitted the testimony over appellant’s objections, he “gave to the jury a special instruction to disregard the same, and not to consider said testimony for any purpose whatever.” We find in the 'record a special charge to the jury telling them that said testimony “was improperly admitted in evidence, and you are instructed that you must not consider said testimony for any purpose, nor permit your verdict to be influenced thereby,” given at appellant’s request. The court erred in admitting this testimony, but, under the circumstances and the facts shown in this case, having given said special charge, the error of the court does not require a reversal. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 870; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348: Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Martoni v. State, 167 S. W. 351. Especially as the statute now is, tire said charge withdrawing said testimony was given to the jury before any argument of the case.

Appellant made no objection whatever to the court’s charge. The court did not submit to the jury for a finding the offense of an attempt to produce abortion. Appellant requested no charge whatever upon the subject. She now claims that the omission of the court to so charge is fundamental error. Under the proper construction of Act April o, 1913, p. 278, amending certain, articles of the Procedure, we think appellant’s contention is wholly untenable. We have so held in a large number of cases since said amended act went into effect. We deem it unnecessary to collate them or further discuss the question.

The judgment is affirmed.

DAVIDSON, J.

I cannot agree to this affirmance. There are several serious errors. I may write on rehearing.

On Motion for Rehearing.

HARPER, J.

The writer agreed to an af-firmance of this case on a former day of this term, but a more thorough study of the record has convinced him that he was in error in so doing on one proposition, and that is, there was on error in admitting testimony that appellant had produced or attempted to produce an abortion on other and different people than the person charged in this indictment. In the original opinion it is stated:

“It is perfectly manifest from the record in this case and, the statement of facts, that appellant’s contention, to prevent conviction, was twofold: First, that said Mrs. Moore was not pregnant, and that appellant did not know it if she was; and, second, that the acts she performed upon her were solely and simply for the innocent purpose and intention of bringing on the suppressed menses of Mrs. i Moore under the belief that she was not pregnant.”

If this was the correct construction to place on the record and evidence, then the opinion would be correct beyond question, to our minds; for, if the state shows one to have committed an act forbidden by law, and as a defense to such act the person on trial makes a defense that if he, in fact, did the acts alleged by the state, he did so innocently or by mistake, then proof of other similar offenses is admissible to rebut the proof of innocent intent or mistake. After a renewed study of the record, we have become convinced that the evidence offered by appellant tended only to show that Mrs. Moore was not pregnant at the time she committed the act complained of, and this was the defense relied upon. The evidence shows that Mrs. Moore had passed her menstrual period some seven or eight days, and she was fearful that she was pregnant; that she went to appellant to have this condition remedied. Appellant requested her to wait a month and, see if her menstruation would not return without an operation. This Mrs. Moore declined to do, and insisted upon appellant performing the operation. We think the evidence demonstrates appellant did so for the purpose and with the intent, if Mrs. Moore was pregnant, to produce an abortion. This, we have come to the conclusion, is the only reasonable deduction from the evidence before us, and it does not raise the issue that she, at the time she performed the operation, knew that Mrs. Moore was not pregnant, and only performed the operation to bring about a flow of the menses. But the acts performed were done to cause a flow of the menses in order to bring about an abortion if Mrs. Moore was pregnant. There is, to our mind, no evidence offered or introduced that tended to prove other than that the acts which appellant performed were with the intention of producing an abortion if Mrs. Moore was pregnant. In the original opinion are quoted some opinions which hold that, if the statute provides that in order to obtain a conviction the state must show a guilty intention, other offenses which tended to show, the intent of the person on trial would be admissible, even though the evidence offered by appellant did not raise the issues of mistake or innocent intent. We opine that the statutes of those states in which it was so held did not provide, as does our Code, that:

“When the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act,” and “the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act.” Articles 51 and 52, Penal Code.

Under these provisions of the Code it is the rule in this state that, when an accused is shown to have committed an act prohibited by law, there must be some evidence adduced on the trial raising the issue that the act was committed with no intent to produce the result, or the intent will be presumed from the doing of the act which- results in a violation of the law. In a case of theft it must be shown that the property was taken with the intent to deprive the owner of its value, and with the intent to appropriate such property to the use and benefit of the person taking same. But it is only necessary to prove that the property was taken, and that the accused took it and had it in his possession. Under such a state of facts our law presumes the intent to deprive the owner of the value of it, and the' intent to appropriate it to the use of the taker, unless the evidence elicited on the trial raises the issue that it was taken under a claim of right, by mistake, or some other innocent motive, showing a lack of intent to take and appropriate another’s property. If the evidence raises such an issue, then evidence of similar offenses is admissible to rebut this evidence of innocent intent. In those cases which hold other offenses admissible, it is shown that it is only in those cases where the evidence adduced on the trial raised the issue that there might be no guilty intent that evidence of other offenses became admissible, and for that reason. Gilbraith v. State, 41 Tex. 567; Long v. State, 11 Tex. App. 387; Davisson v. State, 12 Tex. App. 215; McCall v. State, 14 Tex. App. 362; Holmes v. State, 20. Tex. App. 518; Harwell v. State, 22 Tex. App. 253, 2 S. W. 606; Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376; Stanfield v. State, 43 Tex. Cr. R. 12, 62 S. W. 917; Lynne v. State, 53 Tex. Cr. R. 377, 111 S. W. 729. On the other hand, it seems to be the well-settled rule in this state, when the evidence adduced on the trial leaves no question as to intent of the accused in doing the act complained of, proof of other offenses, even though of similar character and kind, is not admissible on the issue of intent. Harris v. State, 55 Tex. Cr. R. 478, 117 S. W. 839; Davenport v. State, 49 Tex. Cr. R. 11, 89 S. W. 1077; Clark v. State, 59 Tex. Cr. R. 246, 128 S. W. 132, 29 L. R. A. (N. S.) 323; Bink v. State, 48 Tex. Cr. R. 598, 89 S. W. 1076; Johnson v. State, 57 Tex. Cr. R. 492, 123 S. W. 1105; Miller v. State, 59 Tex. Cr. R. 249, 128 S. W. 117.

Since the writer has been on the bench he had once before occasion to investigate this question (Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 939), and we there collated the decisions of this court, and held that proof of other offenses is not admissible to show intent, unless the evidence adduced on the trial renders it an issue in the case, and have again investigated the question, and our opinion thus expressed has been confirmed in view of the provisions of our Criminal Code that the intent will be presumed when the means used are such as would ordinarily result in the commission of the offense complained of. In this case, from a re-reading of the record, we have come to the conclusion that the sole defense relied on by appellant, as shown by the testimony, was that Mrs. Moore was not pregnant at the time she inserted the rubber catheter in her womb. There was no denial of the fact that the catheter would not produce ‘an abortion if, in fact, Mrs. Moore was pregnant, and no evidence introduced tending even to raise that issue.

Under such circumstances, we are of the opinion the motion for rehearing should be granted, and the case reversed, and on another trial all evidence of other and different offenses excluded.

The motion for rehearing is granted, and the judgment is reversed and remanded.

PRENDGERGAST, P. J.

(dissenting). Before the original opinion was written I carefully read and thoroughly studied the evidence and record. I then reached the conclusion that appellant’s contention in the trial court was that she not only did not know that Mrs. Moore was pregnant when she performed the acts she did upon her, but also “that the act she performed upon her were solely and simply for the innocent purpose and intention of bringing on the suppressed menses' of Mrs. Moore and under the belief that she was not pregnant.” In considering the motions for rehearing, I have again more carefully read and thoroughly studied the evidence and record, if that can be, than when I wrote the original opinion, and I am confirmed and strengthened in my original opinion. My Brethren, however, have reached the other conclusion. If they are right, of course, the judgment should be reversed. I do not propose to give any detail statement of the evidence — only sufficient of it to show how I reached the conclusion I did and why I adhere to it.

Mrs. Sadie Moore was the state’s first witness. The substance of her testimony on direct examination was:

That on March 12, 1913, she had been married about three months. “It had been just a short while since my menstrual period; about two weeks I reckon.” That she knew appellant and went to her home and saw. her there said date. That Mrs. Rob Moore (another Mrs. Moore) went out there with her. “I told her [appellant] what I wanted done; I told her I wanted an abortion. * * * She asked me how far I was, and I told her about two weeks or ten days, or something like that. There was something said about pay; defendant said she charged $10, and I paid her. I then lay down on a couch, and defendant used a catheter, a little rubber tube, and she inserted it into my womb. She put some cotton around the catheter. She left it in there. * * * The catheter remained inserted in my womb from about 11 o'clock one day until about 11 o’clock the next day. Then I removed both the catheter and the cotton. * * * After the removal of the catheter and cotton I was sick. It was successful; my menstrual period I guess came from the womb after the removal of the catheter and cotton. There was also something else came from my womb, but not very much of anything; it looked like a little old white substance, just very small, about the size of a dime. After this about two oi- three weeks I consulted with a physician — Dr. Nance. He came to my house and made an examination of my womb and put an ice bag on my side. I just wanted to have the doctor come and see me and tell him what I had done; I just kind of felt kind of bad, and I thought there might be some inflammation there or something.”

Appellant then took her on cross-examination and had her testify:

That she was 19 years of age when she married, and never had been married before; that she had never given birth to a child, was ignorant of all such matters when she went to see appellant, and had never before been pregnant, and knew very little about matters of that kind. “My regular menstrual period should have arrived along some time about the 1st of March, and, my period not arriving about that time, I became uneasy as to my condition. There was nothing in my condition that aroused my apprehension except the fact that I had missed my monthly period, and I was not accustomed to missing it.” That she first discussed her condition with said Mrs. Rob Moore, who was an older and longer married woman than she was, and told her about missing her menstrual period and the time. That Mrs. Rob Moore told her she could go out to appellant, and she went there mainly to see what her condition was, and told appellant the time she had missed her menses, and that “I was worried about my menstruation, and asked her if she could do anything to cause the resumption of my menstruation or cause me to ‘come round.’ * * * She asked me how long .1 had passed my period, and I told her all I knew about my condition was that I had missed my period. She told me that she would not make an examination of me or try to bring on my menstruation unless my husband requested her to do it.”

She said:

That she then phoned to her husband, and he told her he would leave it with her. That defendant did not send for her, but she voluntarily went to get the help of defendant to relieve her of the situation that was embarrassing her. “When I talked to defendant about this, and after we had called up my husband, it seems to me she said something about my waiting until the next month to see if my period would not come around without doing anything.” That she was very nervous and crying at the time, and told defendant that if she was going to have it done she would rather have it done then.

She further said:

That after the catheter was inserted ip her womb and her womb packed with cotton, and after it remained there about 24 hours, it “produced the flow, more than usual.”

Appellant further had her testify:

“At the time I went out to see defendant I thought I was pregnant, but I did not know. I do not suppose that I could swear that I was, that I was absolutely certain about the matter, but I thought so then, and still think I was.” .

On redirect examination she testified that she was living with her husband since she married him, and that the ordinary relations between man and wife existed between them, and during the time within 40 days preceding the time she discovered that her menstruation had ceased she had had sexual intercourse with her husband. On recross-examination appellant had her testify that she phoned Mrs. Rob Moore the day before March 12th and told her she thought she was pregnant. She said, “Mrs. Moore might have told me in this phone conversation that it was not unusual for a lady to go by her menstrual period,” but she did not remember that she did; did not remember telling her that she did not know whether she was pregnant or not.

The next state’s witness was said Mrs. Rob Moore. On direct examination she said that on said occasion, March 12, 1918, she went with Mrs. Sadie Moore to appellant’s house and heard the conversation between appellant and Mrs. Sadie Moore; that Mrs. Sadie Moore wanted Mrs. Gray to examine her, and she refused, and Mrs. Sadie Moore began to cry and beg her to, and Mrs. Gray said she would if Mrs. Moore would phone her husband ; Mrs. Moore phoned her husband, and he was perfectly willing to go ahead, and then Mrs. Gray said she would; the horse hitched to the buggy in which these two ladies went to appellant’s got loose, and Mrs. Rob Moore said she went to catch the horse, and did not see what appellant did to Mrs. Sadie Moore; that when she returned from catching the horse everything was over and Mrs. Sadie Moore was ready to go; that she knew that Mrs. Sadie Moore took some money with her, and thinks she paid defendant $10; that she thought Mrs. Sadie Moore was going to be sick, and went over to Mrs. Sadie Moore’s the next day to help her get dinner; found that she was up and just as cheerful as she had ever seen her. On cross-examination appellant had Mrs. Rob Moore to tell that the day before March 12th Mrs. Sadie Moore told her she had passed her period some eight or nine days, and that she asked her (the witness) to go out with her to appellant’s to find out wheher she was pregnant or not. She said:

“I do not remember whether she just said it in that way or not, bqt she wanted to be examined. Mrs. Moore talked to me like she thought she was pregnant, and I tried to convince her that she was not, but she thought she was, because she was so young and inexperienced; she just said she had passed her time eight or nine days, and that was the only reason she thought she was pregnant. I explained to her that missing her period was nothing uncommon.” That, when she went over the next day to help Mrs. Sadie Moore with her dinner, “it seems she said something to me about having menstruated, but she said nothing about having aborted or delivered a child; * * * just stated that her menstruation had come around all right, and that she was all right; she never told me that there was anything unusual about the menstruation coming around or any unusual discharges.”

These two witnesses were the only ones other than appellant herself by whom the state could prove its case as to the immediate facts thereof.

I think the examination by the state and the direct testimony of both of these witnesses was for the sole purpose of showing that Mrs. Sadie Moore was pregnant, and that the acts performed upon her by appellant were performed with the knowledge of that fact, and with no other intention than to produce an abortion. On the other hand, I think the cross-examination of both of these witnesses was not only for the purpose of attempting to show that Mrs. Moore was not pregnant, but especially to show that, if she was, she (appellant) did not Imow or believe it, for she had Mrs. Moore to testify that she herself (Mrs. Moore) did not Imow, but simply believed or thov,ght she was pregnant, and had the other Mrs. Moore to testify that she tried to convince Mrs. Sadie Moore that she was not .pregnant, but simply that her menses were suppressed for a few days, which was not an unusual, but simply an ordinary, condition of married women, and that appellant performed the act she did, not to produce an abortion, but simply and solely for the innocent purpose and intention of bringing on her suppressed menses. From the coui'se of the whole cross-examination of these two witnesses, to my mind, it is the same as if the appellant had said to the trial court and jury:

“I did not know that Mrs. Sadie Moore was pregnant; did not believe she was. What I did to her was with no intention or purpose to bring on an abortion, but was simply and solely to relieve the lady of her distress and bring on her suppressed menses; that her menses were not suppressed because of pregnancy, but from some other cause which was not unusual in women.”

This being the case, I believe the testimony of the other witnesses showing and tending to show that she had produced abortions on other women, both before and after, was clearly admissible.

I think there can be no doubt, not only that appellant made this contention and showed it both directly and by implication from her cross-examination of these witnesses, but that she could make it appear more or less plausible, for there can be no doubt, and is none, to my mind, that, if Mrs. Moore had not been pregnant, what appellant did to her would unquestionably have brought on her suppressed menses, whatever the cause, other than pregnancy. In other words, here was a woman with delayed or suppressed menses. What appellant did to her would bring on her suppressed menses, whether caused by pregnancy or some other cause. Then, unquestionably, what appellant did was an equivocal act. The state contended that the act was performed to bring on an abortion, and with that intent only. The appellant contended that that was not true, but that what she did was done for the purpose of bringing on suppressed or delayed menses and with that intent and for that purpose only. To bring on her menses, if not pregnant, was not a crime, but a commendable and innocent act. Hence the application of the rule that testimony of her like acts upon other women showing that her intention was to bring on an abortion, and not innocently bring on suppressed menses, was clearly admissible.

■I think the judgment should be affirmed, not reversed.
      <§=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes