Hammett v. State
| Decision Date | 26 February 1919 |
| Docket Number | (No. 4926.) |
| Parties | HAMMETT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Eastland County; Joe Burkett, Judge.
G. C. Hammett was convicted of abortion, and he appeals. Affirmed.
M. C. Council, of Clyde, and J. R. Stubblefield, of Eastland, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was charged in the court below with abortion. The indictment contained two counts, one charging the use of a metallic instrument, and the other the giving of drugs and medicine. The court submitted only one count — the one charging the use of a metallic instrument to effect the abortion. The jury found appellant guilty and fixed his punishment at five years' confinement in the penitentiary.
Appellant asked several special charges, his special charge No. 1 setting forth the law of circumstantial evidence as shown by his bill of exceptions No. 7; but an examination of the facts in evidence satisfy us that no error was committed in refusing this charge and refusing to charge on circumstantial evidence. The prosecuting witness testified fully to the acts and conduct of both the appellant and the physician who was procured by appellant to perform the abortion upon her, and this would take the case out of the rule of circumstantial evidence.
In his special charge No. 2, as shown by his bill of exceptions No. 8, appellant asked that the jury be charged the law of accomplice testimony, claiming that the prosecutrix was in law an accomplice, and that that phase of the law should be submitted to the jury. The question has been passed upon so frequently in this state that it is no longer an open one. The prosecutrix was not an accomplice. Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Hunter v. State, 38 Tex Cr. R. 61, 41 S. W. 602; Gray v. State, 77 Tex. Cr. R. 221, 178 S. W. 337.
Appellant asked special charge No. 4, which was given by the court, and will be noticed later in this opinion.
Appellant complains by his bill of exceptions No. 1 of the action of the trial court in instructing the entire panel of the jury, prior to calling any cause for trial, upon certain general phases of procedure and trials. We have examined the authorities cited by appellant's counsel, and have carefully examined the remarks of the court to the jury, and while we agree with the holdings in the cases cited, we do not find anything in the instant case that was in any wise calculated to prejudice the rights of any person accused of crime whose case might be set for trial during that week.
Appellant's bill of exceptions No. 2 complains of the action of the trial court in refusing to postpone the trial in order to enable the appellant to obtain the testimony of Dr. Earnest, who was indicted by separate indictment for the same offense. The qualification of the trial court upon this bill shows that both appellant and Dr. Earnest filed statutory affidavits, each asking that the other be tried first, and that in accordance with the law the court had in such case put the one to trial whom he thought best, and that one being the appellant, who had had a trial resulting in a hung jury, and thereafter Dr. Earnest had been tried and convicted, and this instant case was the second trial of appellant. As explained by the court we see no injury in the court's action.
Appellant's bill of exceptions No. 4 complains of the charge of the trial court on the law of principals; the contention being that same was erroneous because it authorized the jury to find the appellant guilty as a principal if he consulted or advised the doctor who actually performed the abortion to commit same. It is not necessary for one to be present when an offense is actually committed in order to make him a principal. Where a criminal enterprise is launched by the active participation and presence of certain persons, and same moves on to its completion under the visible direction of some and in accordance with the plan of all, and the case be one in which it is impossible for the jury or the court to tell at what stage of its progress the forbidden thing was actually accomplished, that is, whether in the initial chapter where all who engaged in the criminal enterprise...
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...221, 229, 178 S.W. 337, 341 (1915). There is no immunity in Texas for the father who is not married to the mother. Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State, Tex.Cr.App., 493 S.W.2d 913 (1971), appeal pending. 50 See Smith v. State, 33 Me., at 55; In re Vinc......
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Easter v. State, 51359
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