Link v. State

• Decision Date: 18 February 1914
• Citation: 164 S.W. 987
• Parties: LINK v. STATE.
• Court: Texas Court of Criminal Appeals

164 S.W. 987

LINK v. STATE.

Court of Criminal Appeals of Texas.

February 18, 1914.

Rehearing Denied March 11, 1914.

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

W. A. Link was convicted of procuring an abortion, and he appeals. Affirmed.

Hood & Shadle, of Weatherford, Baskin, Dodge & Eastus and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER J.

Appellant is a physician located at Ft. Worth, and was prosecuted and convicted of procuring an abortion upon Daisy Moore, and his punishment assessed at four years' confinement in the state penitentiary.

A motion was made to quash the indictment. It is in the language prescribed in White's Ann. Code, § 1126, and which has been frequently approved by this court; therefore the court did not err in overruling the motion.

The indictment in this case charges that the abortion was produced by the insertion of an "instrument into the private parts and womb of the lady," the name, character, and description of the said instrument being to the grand jurors unknown. No motion was made to quash the indictment on this ground, but after the introduction of the evidence the defendant requested the court to instruct the jury that, as no evidence had been introduced showing that the grand jury did not know the name of the instrument, to instruct a verdict of not guilty. While it is true no grand juryman was called and questioned in regard to this matter, yet the record is replete with testimony that if an abortion was produced, it was done by the insertion of an instrument, the name, character, and description of which was unknown at the date of this trial, therefore the court did not err in refusing the instruction. McCarty v. State, 36 Tex. Cr. R. 135, 35 S. W. 994.

When Daisy Moore was on the witness stand she was permitted to testify that her stepfather, W. E. Fondren, had had intercourse with her on two named dates. As it was necessary to prove that she was pregnant, this testimony was admissible. Appellant all through the trial seriously contested the fact that she was pregnant, and further contended that, if pregnant, the fœtus was dead at the time she was operated upon by appellant. Under such circumstances any and all testimony which would tend to show that the woman was pregnant and the child was alive when she was operated on by Dr. Link was admissible, and the court did not err in so holding.

This bill of exceptions is some 11 pages in length, containing questions and answers and objections made, some of which were sustained and some overruled, winding up with the statement, "to all of which rulings of the court the defendant then and there excepted and tenders this his bill of exceptions." A bill of exceptions should state the setting, the testimony introduced, and the objections made, and not leave it for us to read some 10 or 11 pages of questions and answers, statements of state's counsel, objections made, rulings of the court, and leave us to search with a fine-tooth comb to find what evidence was really admitted, and which objections were sustained by the court. They should be clear, pointed, give the testimony admitted, and point out the error in the ruling.

The next bill relates to the testimony of Mrs. W. E. Fondren on cross-examination. The questions, answers, objections made, and rulings of the court embrace 17 pages of the transcript. Some of the questions and answers thus included were not objected to; some of the objections were sustained, and some overruled. Some of the testimony embraced in the bill was clearly admissible under all of the holdings of the court. In the case of Ortiz v. State, 151 S. W. 1057, the rule governing these matters is clearly and succinctly stated in an opinion by Judge Davidson wherein the authorities are cited, and it is held that a bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible. However, at different times we have studied these two bills, and believe that we clearly now understand both the portion of the testimony which was admitted over objection and the objections urged.

Daisy Moore testified:

"My mother's name now is Rachael Fondren. She is married to Edward Fondren, W. E. Fondren. My mother and W. E. Fondren have been married 12 or 13 years.

"I know what you mean by monthly sickness. When my monthly sickness first appeared I was 14 or 15 years of age, about 14 years old, as well as I remember it. My mother, Mrs. Rachael Fondren, and I made a visit to Ft. Worth about the 1st of May of this year; we came down to Ft. Worth. I had not been having my monthly sickness regularly up to the time I came down to Ft. Worth. I had had my monthly sickness last on the 17th of October, last year, last winter, the 17th of October, and I never had my monthly sickness after that period. I missed first about November 17th.

"You ask me if I had had intercourse with any man or boy prior to coming to Ft. Worth, and if any man had had intercourse with me prior to my coming here to Ft. Worth, who it was, and I answer, W. E. Fondren. I refer to W. E. Fondren, my stepfather; he is the one. My stepfather is the one—what question did you ask me? W. E. Fondren is about 47 or 48 years old. I was living in his home when he commenced to have intercourse with me.

"I was sick last about the 17th of October, and between that time and the time I came to Ft. Worth (about May 1st) of this year, W. E. Fondren had intercourse with me. He had intercourse with me about four or five days after the 17th of October, as well as I remember. It was in the cotton patch that he first had intercourse with me after my sickness on the 17th of October—alongside of the cotton patch; I was going to pick cotton. I did not make any engagement with him to meet him in the field, I never did. At this time in the field there was no one else there besides the defendant and me; by the defendant I mean W. E. Fondren. He had intercourse with me after this time in the cotton patch you have just questioned me about; that was not long after this time in the cotton patch, just a few days. After that I missed my sickness on November 17th, and it did not occur any more up to the time I came to Ft. Worth. Before I came to Ft. Worth I experienced a movement in my abdomen that I had never experienced before; there was a movement in my abdomen that I had never experienced before; that appeared about a month and a half before I came to Ft. Worth. That movement increased as time went on, up to the time I came to Ft. Worth. With reference to my size around my abdomen and my hips, I state that I got larger; I grew larger—I said larger. On the 17th of October and along there I was wearing a No. 20 corset, and when I came down here to Ft. Worth I was wearing a 22. Prior to October 17th I wore a corset that laced behind; some one did get me a corset during this period. I had been wearing corsets that laced behind and snapped in front, sorter, and the kind of a corset I had gotten for me during this time was one that laced in front, and it would give behind here and on the side of it, you could lace it on the side and front here. It had the snaps in front and also the lacing down the front. I could lace down a whole lot with that new kind of a corset.

"W. E. Fondren brought me from my home to Weatherford when I started down here to Ft. Worth; he is my stepfather. My mother and I came on to Ft. Worth by ourselves; my mother had her baby with her. It was the 3:45 train we got on at Weatherford; 3:45 in the evening. I had some relatives living here in Ft. Worth at that time; they were my sister and brother-in-law. My sister's name is Pansy Kirby, and she is my full-blood sister. She is married to George Kirby. When I got here to Ft. Worth that evening I went right on out there to my sister's. The next morning I did go somewhere, and my mother and sister went with me; we went over here in town to hunt a doctor.

"This morning that we came over to Ft. Worth I met the defendant, Dr. Link; met him in his office there—here in Ft. Worth, in Tarrant county, Tex.

"You state that I cannot give the exact words, but ask me to relate as near as I can to the jury, giving the substance of any conversation my mother or I had with the defendant doctor at that time, and I answer: Mama came into the office there and said, `I want you to operate on my girl; she got into some trouble with a boy, and I want you to operate on her, Doctor'—and he said, `All right.' He told me to get up there on his operating table in a chair and let him examine me. I got on the operating table. It was a table you lay your head down and put your feet way up high. After I was on that table the position of my feet and limbs was way up high, fastened in something. I noticed that there was something like stirrups on the end of this table; my feet were placed in those stirrups to hold them, something to hold them. With reference to the balance of my body my knees were way up high. He examined me with my tight clothes on while I was lying in that position. The first time I laid on this table I had my tight clothes on. After he had examined me he said he would operate on me then. After I was off this operating table he told me to go behind a screen there and pull off my tight clothes. Up to that time I had heard a conversation between my mother and the defendant; she wrote a check; I saw her writing something over there. You ask me if I understood from the conversation between my mother and the defendant the amount of that check, and I tell you they said it was $150. From the conversation between the defendant and my mother I know that check was torn up afterwards; they made another one.

"I took off my tight clothes, and after I had them off, I was then examined again up on the table; I was placed in the same position, I was put up there. After I was...