Dykes v. State

• Citation: 1 So.2d 754,30 Ala.App. 129
• Decision Date: 22 April 1941
• Docket Number: 4 Div. 665
• Parties: DYKES v. STATE.
• Court: Alabama Court of Appeals

1 So.2d 754

30 Ala.App. 129

DYKES v. STATE.

4 Div. 665

Alabama Court of Appeals

April 22, 1941

J.N. Mullins, of Dothan, for appellant.

Thos S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen for the State.

BRICKEN, Presiding Judge.

Criminal abortion, the offense charged by indictment, against this appellant, is generally regarded as a heinous crime; and, is made a felony under the laws of this State. Section 3191 of the Code 1923, provides: "Any person who wilfully administers to any pregnant woman any drug or substance, or uses or employs any instrument or other means to induce an abortion, miscarriage, or premature delivery, or aids, abets or prescribes for the same unless the same is necessary to preserve her life and done for that purpose, must, on conviction, be fined not more than five hundred dollars and imprisoned in the penitentiary for not less than two nor more than five years."

Upon the trial of this case, in the court below, the defendant was convicted and judgment of conviction was duly pronounced and entered, from which this appeal was taken.

We find, that the evidence adduced upon the trial was probably without parallel; and, could properly be termed atrocious loathsome and morbid, depicting as it does a state of unlawful facts, horrible, repulsive, flagrant and vicious in the extreme. All the facts were without dispute or conflict. The defendant offered no testimony.

We will not sully the court's records and reports by a recitation of the evidence in full, it being of the nature and character hereinabove indicated; but we deem it necessary to state the tendency of the State's evidence in connection with the adjudication or decision of the single proposition of law upon which this appeal is rested.

Mrs. Hassie Spann, upon whom the alleged abortion was committed, as the indictment charges, testified directly and emphatically that this appellant came to her house, at the joint request of her husband and herself on the night in question, and in the presence of her husband committed the abortion upon her and as a result of which she delivered, in about two days thereafter, a dead child. That she had been pregnant about five months. That it was not necessary for Mr. Dykes to perform that operation on her to preserve her life. And on cross-examination, this witness testified:

"I am thirty-two years of age. I have some children and I had children before this pregnancy and I wanted to get rid of the baby and the purpose of having this miscarriage produced was because of a wreck that was contemplated and I wanted to be in the wreck and then say that the wreck caused the miscarriage. My husband and I conceived the idea and got Mr. Dykes to come up and perform that operation for the purpose of defrauding some insurance Company and get money by reason of a wreck. We did get some money."

Witness Wess Spann, husband of Hassie Spann, was next introduced by the State, and his testimony corroborated that of his wife in every particular. He testified, among other things: "I am the husband of Hassie Spann and the month of January, 1939, or the first half of that month my wife was pregnant and I knew about the fact. She had been pregnant between four and a half and five months. On or about the middle of January, 1939, James Walter Dykes, the defendant, came to my house near Newville in Henry County, Alabama, and in my presence he did an abortion on my wife. He said she should miscarry something like a day and a half. That was on a Sunday Night between eleven and twelve o'clock and she did have a miscarriage Wednesday Morning."

And on cross-examination he stated, among other things: "It was done because my wife and I wanted it done in order that we could fake a wreck and get some money from an insurance company. My wife and I conceived the idea of getting rid of our unborn baby so we could pull what they call a fake wreck with an automobile and she could say that out of that wreck she had the miscarriage."

In addition to the foregoing, the State introduced as a witness Dr. C.T. Jones, whose qualifications as a physician were admitted by the defendant. This witness, among other things, testified: "I know Hassie Spann. She lives in Henry County, Ala., I went there January 10, 1939, and when I saw her she was complaining of abdominal pains and she was having slight uterine contractions. I saw her the 10th, 11th, and she had this baby on the 12th. I was present when she had the baby. The baby was about twelve inches long and so far as I noticed that baby was fully developed for a child in that period of pregnancy."

In concluding its case, the State offered a written confession of the defendant, and after several objections, motions etc., by the defendant, to the introduction of said confession, the trial court held that paragraphs five and nine, only, would be admitted. Sections five and nine are as follows: "Sometime on or about January 16, 1939, I saw Earl Lee Messer on the streets of Dothan, Ala. and he told me that Mr. Wess Spann wanted to see me about performing an abortion on his wife, Hassie Spann. Messer told me to go to Wess Spann's place the first chance I got. I told him all right that I would go up there and perform the abortion. No one else contacted me about performing this abortion until the day that it was performed. On or about January 16, 1939, I went alone in my car to the home of Wess Spann, near Newville, Alabama. When I arrived at Wess's home I contacted Wess Spann and the best as I can remember I told Wess Spann that Earl Lee Messer had seen me and told me to come up there to perform an abortion on his wife. Earl Lee Messer had already told me that he would pay me for performing this abortion and that he would pay me $25.00 for performing the same. After talking the matter over with Wess Spann I went into his home and performed an abortion on his wife, Hassie Spann. Wess Spann, his wife, Hassie Spann, and I were the only ones present at the time the abortion was performed. I performed this abortion by inserting a tube up into the womb of Mrs. Hassie Spann. Before inserting the tube, I put it in boiling water and disinfectant. I did not give Mrs. Spann any kind of sedative or medicine to assist her in undergoing this ordeal. It only took me a matter of around 5 or 10 minutes to perform this abortion, and after performing it I left the house. I left this tube in Mrs. Spann's womb and told her to leave it there all night. If this method works it is supposed to produce an abortion in any where from 2 to 5 days. After performing the abortion I did not come back to Spann's home. I saw Earl Lee Messer...