Gray v. State

• Decision Date: 28 April 1915
• Docket Number: (No. 3499.)
• Citation: 178 S.W. 337
• Parties: GRAY v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W. 337

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.

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 to 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, C. C. P., in prescribing the 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 terms 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 Proc. 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 the evidence was...