Moore v. State

Citation40 S.W. 287
PartiesMOORE v. STATE.
Decision Date28 April 1897
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from district court, Jack county; J. W. Patterson, Judge.

W. C. Moore was convicted of abortion, and appeals. Affirmed.

W. M. Walton, W. E. Taylor, and Sil Clark, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of abortion, and his punishment assessed at confinement in the penitentiary for a term of five years, and prosecutes this appeal.

1. The indictment was in three counts. The first count charged that appellant committed the abortion by the administration to the prosecutrix, Mollie Smith, of a drug and medicine; and the second count charged that appellant committed an abortion upon said prosecutrix by means of forcing into her womb and private parts a certain metallic instrument, calculated to produce abortion, etc.; and the third count charged that appellant committed an abortion upon the prosecutrix by means of inserting into her womb and private parts a certain pen staff,—an instrument calculated to produce abortion. All of said counts charged that the means were used with the consent of the prosecutrix. The court, in his charge to the jury, submitted only the first and third counts, which was tantamount to a dismissal of the second count, to wit, the count charging an abortion by means of the use of a metallic instrument; that is, it was equivalent to an election on the part of the state to only prosecute on the first and third counts. See Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774; 1 Bish. Cr. Proc. § 1015, subsecs. 2, 4. On the conclusion of the evidence, appellant made a motion requiring the state to elect upon which of said counts it would prosecute. This was refused, and the action of the court therein is assigned as error. It is insisted that said two counts set out distinct and different transactions, and that in such case the proper practice is to require the state to elect; and it is further insisted that the refusal of the court to so require the prosecution to elect on which count it would insist for a conviction of the appellant was calculated to, and did, injure him. In this connection, we are referred to the following authorities: Simms v. State, 10 Tex. App. 131; Keeler v. State, 15 Tex. App. 111; and McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426. The first of said cases was a conviction for murder, the appellant being indicted in the first count as a principal, and in the second count as an accomplice. The court in that case held that these were two distinct transactions, and in such case the state should have been compelled to elect. We do not understand such to be the correct rule of law, or that this court would now hold that the doctrine of election applied in such case. See Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774; Dill v. State (Tex. Cr. App.) 33 S. W. 126. In Keeler's Case, supra, the question was not before the court; and the question of counts and election is only discussed in a general way, and certain character of cases are cited in which counts may be joined in the indictment, and certain character of cases stated in which an election will not be required. We do not understand anything said in that case to be applicable to this case. Nor was the question a practical one in McKenzie's Case, supra. In this case the charge was theft, and in each of the four counts of the indictment the same property was alleged to have been stolen. In the first and second counts the theft was alleged to have been committed in New Mexico,—in the first count the property alleged to be brought into Martin county, and in the second count into Terry county. The fourth count alleged the theft to have been committed in Andrews county; and the third count alleges the theft to have been committed in Terry county, then attached to Martin county for judicial purposes. The court, in passing, states that some of these counts appear to have been upon distinct transactions from the others, and proceeds to state that when, upon a trial, distinct transactions are developed, at the request of the defendant, the state should be forced to elect upon which count the prosecution will proceed (such a request, however, was not made in the case); and then the court proceeds to remark: "We have mentioned this subject solely for the purpose of preventing mistakes in the future." So, it will be seen that the question was not really before the court. We are disposed to question the above statement as to said counts involving different transactions, the only difference being that the offense was alleged to have been committed at different places, it being otherwise the same offense and transaction. We understand the rule to be that the indictment can charge the same offense or transaction in any number of distinct counts, and in such case the state will not be driven to an election. If distinct offenses are charged in different counts in the same indictment, the state may be required to elect. See Pisano v. State, 34 Tex. Cr. R. 69, 29 S. W. 42. If the same transaction or offense is charged in different counts, each count alleging a different mode or means of doing the same act constituting the offense, the state will not be required ordinarily to elect. See Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Dill v. State (Tex. Cr. App.) 33 S. W. 126; and Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160. In Willis v. State, supra, it was held (which follows the current of authorities in this state) that distinct ways of doing the same offense, not antagonistic to each other, may be set forth conjunctively in the same count; and in such case there can be, in the nature of things, but one count, and no election, but the prosecution proceeds on all the means alleged in the count. In Tabler v. State, 34 Ohio St. 127, it was held that where there were two counts in an indictment, one charging feticide by means of the administration of drugs, and the other charging the same offense by the use of instruments, not only could the prosecution proceed on both counts, but that, where the proof left it uncertain as to whether the feticide was caused by one or both means, the jury could consider both means, as alleged in the two distinct counts, and the court refused to give a charge presenting the contrary view. The court say upon this question of counts: "Where the several counts in the indictment are not only properly joined, but also are of such a character that it would be an abuse of discretion to compel the prosecuting attorney to elect upon which the trial shall proceed, that it can proceed upon both." In considering the refusal to give the charge requested by the appellant in that case, the court uses the following language: "The next question is, did the court err in refusing to charge that the abortion was the result of drugs and instruments combined, and was not solely the result of either? The statute makes feticide, by administering a drug, or by using an instrument, a crime, and makes no express provision where the destruction of the fetus results from their combined effect. It by no means follows, however, that, where the destruction of the fetus results from their combined operation, no crime, under the statute, is committed. Each of the counts in this indictment charged the same feticide. In the first it was charged to have been caused by means of an instrument, and in the second by means of a drug. That these counts were properly joined is not disputed. Whether a third count, charging the destruction of the fetus by the combined use of an instrument and a drug, would have been good, may be seriously doubted, no such means being named in the statute; but, if good, it conclusively shows that, under one or both of the counts of this indictment, a conviction might be had, upon proof that the feticide was the result of the combined effects of both causes. It is only necessary now, however, for us to show that it was not essential to a conviction under either of the counts that the destruction of the fetus was caused solely by the means described in such count." To the same effect, see Com. v. Brown, 14 Gray, 419; Com. v. Thompson, 159 Mass. 56, 33 N. E. 1111. The proof on the part of the state shows that the appellant administered to the prosecutrix, Mollie Smith, certain drugs for the purpose of procuring an abortion, and also, during the time she was taking the drugs, that he performed an operation on her with an instrument alleged in the indictment. The proof shows that the prosecutrix aborted a short while after these means were used. The proof on the part of the state leaves it uncertain whether the prosecutrix aborted from one or the other of the means alleged, or she may have aborted from the combined use of both means. There was but one abortion. That was the transaction upon which appellant was being prosecuted, and in our opinion, under the facts of this case, the court acted properly. Indeed, it would have placed the state at a great disadvantage had it been required to elect upon which count it would prosecute; and, under the circumstances of this case, it was proper for the jury, in arriving at their verdict, to consider the proof under both counts.

2. Appellant contends that the court erred in submitting the first count to the jury at all, inasmuch as he insists that the proof showed that appellant did not administer the drugs himself, but furnished the same to the prosecutrix; in other words, that he was indicted as a principal in said count, and the proof showed that defendant was only an accomplice. In support of this proposition, we are referred to Pen. Code 1895, art. 642, and to Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424, and Wandell v. State (Tex. Cr. App.) 25 S. W. 27. Article 641, Pen. Code 1895, is as follows: "If any person shall...

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