Fondren v. State

• Decision Date: 27 May 1914
• Docket Number: (No. 2845.)
• Citation: 169 S.W. 411
• Parties: FONDREN v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 411

FONDREN v. STATE.

(No. 2845.)

Court of Criminal Appeals of Texas.

May 27, 1914.

On Motion for Rehearing, June 24, 1914.

Dissenting Opinion September 8, 1914.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

W. E. Fondren was convicted of accomplice to abortion, and he appeals. Affirmed.

Baskin, Dodge & Eastus, of Ft. Worth, Hood & Shadle, of Weatherford, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. James C. Wilson, of Ft. Worth, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of accomplice to abortion on Daisy Moore, and his punishment assessed at five years in the penitentiary — the highest prescribed by law.

This is a companion case to that of W. A. Link, who was convicted as principal for procuring the abortion on said girl, and affirmed by this court February 18, 1914, reported in 164 S. W. 987. Some of the evidence in that case is quoted in the opinion. From it the character of this case is shown. Daisy Moore did not, in that case, testify as she did in this to what appellant said and did in the way of advising, commanding, encouraging, etc., the abortion so as to show him an accomplice thereto. That evidence would not have been admissible in the Link Case. Appellant did not testify in the Link Case. He did in this. Appellant's wife testified in the Link Case fully what occurred and was said and done by her and by and between her and Dr. Link and others in the way of procuring and producing the abortion. Appellant had his wife testify in this case, but did not have her testify anything about her seeing and trying to induce other doctors to produce the abortion, nor her seeing and what was said and done between her and Link, who with her actually produced the abortion; and, of course, the state could not and did not ask her anything thereabout. We think it unnecessary to make any further detailed statement of this case or the evidence. As occasion arises, in passing on the different questions, we may make further statement of the evidence necessary or proper to show the questions, discuss and decide them.

In addition to the necessary preliminary and concluding allegations, the indictment is:

"That one W. A. Link and Rachael Fondren, in the county of Tarrant and state aforesaid, on the first day of May," * * * 1913, "did unlawfully make an assault in and upon the person of Daisy Moore, a pregnant woman, the said W. A. Link and Rachael Fondren then and there believing the said Daisy Moore to be pregnant at the time of said assault, and did then and there unlawfully, willfully, and designedly, and with the consent of the said Daisy Moore, and with the intent on the part of them, the said W. A. Link and Rachael Fondren, to procure an abortion on said Daisy Moore, trust and force into the private parts and womb of the said Daisy Moore, a certain instrument, the name, character, description, and substance of said instrument being to the grand jurors unknown, said instrument, in the manner so used, being then and there calculated to produce an abortion upon the said Daisy Moore, and by the said means aforesaid (and by other means to the grand jurors unknown), he, the said W. A. Link, and she, the said Rachael Fondren, did then and there procure an abortion upon the said Daisy Moore and did then and there, thereby, as aforesaid, destroy in the womb of the said Daisy Moore the life of a fetus or embryo which was then and there alive in the womb of the said Daisy Moore, * * * and the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to the said court that one W. E. Fondren, in the county of Parker, and the state of Texas, and before the commission of the said offense of abortion, as aforesaid, on the 30th day of April," * * * 1913, "did unlawfully and willfully advise, command, and encourage the said Rachael Fondren to do and commit the said offense of abortion, and did agree with the said Rachael Fondren that he, the said W. E. Fondren, would pay such sum of money as was necessary for the operation in procuring the said abortion upon the said Daisy Moore in Tarrant county, Tex., the said W. E. Fondren, not then and there being present in Tarrant county, Tex., at the time and place of the commission of said offense in Tarrant county, Tex. * * *"

Appellant made a motion to quash this indictment on only two grounds: First, because it does not allege that said Link knew that Daisy Moore was pregnant at the time he is alleged to have thrust and forced into her private parts and womb the instrument described therein; second, because it "is misleading, confusing, contradictory, conflicting, and repugnant in its allegations wherein it attempts to charge the means used" in these words: "Thrust and force into the private parts and womb of the said Daisy Moore a certain instrument, the name, character, description, and substance of said instrument, being to the grand jurors unknown, said instrument, in the manner so used, being then and there calculated to produce an abortion upon the said Daisy Moore, and by the said means aforesaid (and by other means to the grand jurors unknown), he, the said W. A. Link, and she, the said Rachael Fondren, did then and there procure an abortion upon the said Daisy Moore, etc." After the trial and conviction, he made a motion in arrest of judgment on precisely the same grounds and no other. The court overruled both of these motions. He took bills to the overruling of each. In his motion for new trial he merely complains of the court's overruling each of these motions. In no other way, and on no other grounds, in the court below, or in this, did appellant attack the validity of the indictment.

Our statute (article 1071, P. C.) prescribing what is "abortion" says:

"If any person shall designedly administer to a pregnant woman, or knowingly procure to be administered, with her consent, any drug or medicine, or shall use toward her 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; if it be done without her consent, the punishment shall be doubled. 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 statute as to accomplices (article 79, P. C.) is:

"An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or, who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or, who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or, who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same."

Article 85 is:

"There may be accomplices to all offenses, except manslaughter and negligent homicide."

In addition and as contradistinguished from principal, as to the offense of abortion, article 1072, P. C., is:

"Any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice."

We deem it unnecessary to discuss appellant's grounds attacking said indictment, for either a careful or casual reading of it and the statute shows that it substantially and fully alleges the offense in the terms of the statute which is all that is necessary. The statute does not require, and it was unnecessary for it to allege, that said Link knew Daisy Moore was pregnant when he forced the instrument into her private parts and womb. Wherein or how the indictment is misleading, confusing, contradictory, conflicting, or repugnant, is in no way pointed out, and neither is true. Appellant, in the brief of his able attorneys, cites no authorities, nor does he undertake by argument, illustration, or otherwise to sustain his contentions and show that either of them are in any way correct.

The indictment, as shown on its face, was not drawn nor attempted to be drawn charging appellant as an accomplice under said article 1072, but was drawn and intended to be drawn strictly under said article 79, based, of course, on article 1071, as to abortion.

Appellant in no way in this or the lower court claimed that article 79, quoted above, prescribing who are accomplices to all offenses, did not apply and could not be applied to the offense of abortion. By making no such claim and attacking the indictment on the only grounds he did, he and his attorneys seem to concede that article 79 would and did apply. However, it is claimed in this case now that article 1072 alone applies to the offense of accomplice to abortion and that, because of that article, article 79 is excluded, and that an indictment for accomplice to abortion cannot be based on article 79. A brief discussion and decision of this question is therefore proper.

At common law there were accessories before and accessories after the fact. Under our law accessory before the fact is an accomplice. In other words, we have no technical accessory before the fact denominated as such, but accessories before the fact are accomplices. Abortion was an offense at common law. In all our states abortion is an offense; where there is no Code so enacting, then at common law, and in all others it is made an offense by statute, following the common law.

In 1 Standard Ency. of Proc. p. 126, it is said:

"An accessory before the fact is one who, though absent at the time of the commission of a crime, procures, aids, counsels, or commands another to commit it."

In 1 A. & E. Ency. of Law (2d Ed.) p. 187 et seq., in treating the subject "abortion," it is said (page 191):

"In most of the states of the Union a woman who commits...