Parnell v. State

• Decision Date: 12 February 1958
• Docket Number: No. 29245,29245
• Citation: 312 S.W.2d 506,166 Tex.Crim. 239
• Parties: L. D. PARNELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 506

312 S.W.2d 506

166 Tex.Crim. 239

L. D. PARNELL, Appellant, v. The STATE of Texas, Appellee.

No. 29245.

Court of Criminal Appeals of Texas.

Feb. 12, 1958.

Sam B. Spence, Wichita Falls, Allen, Johnson & Cherry, by Z. D. Allen, Wichita Falls, for appellant.

L. T. Wilson, Dist. Atty., William Browning, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is abortion; the punishment, two years.

The State's theory, supported by its evidence, is that the 14 year old Negro girl was taken to a Doctor Jackson by her grandmother. Dr. Jackson found that she was pregnant, and found no symptoms to indicate anything other than a normal pregnancy.

Before going to Dr. Jackson the girl had attempted to abort herself with a pen staff. After her examination by Dr. Jackson she took hot ginger, which she had heard would cause abortion.

She had no symptoms or sickness which would indicate that she would not have a normal delivery, except for some slight bleeding, which appellant himself testified did not necessarily mean anything and was not uncommon in pregnancy, and which Dr. Jackson testified did not show a resumption of menstrual periods.

The girl and her grandmother then went to appellant and asked him if he did such work as doing away with babies. He said he did not, but a lady did.

Appellant said the cost would be $180, told them to be quiet and to come back the next morning. No physical examination was made on this visit.

The next morning the girl and her grandmother returned to appellant's office and appellant made the same character of physical examination that Dr. Jackson had made, and told the girl to come back alone after office hours, which she did. He said nothing as to the results of his examination.

The girl returned at 5:45 and was told by appellant that the lady would be five or ten minutes late, and in about that time she appeared.

Appellant told the girl to pull off her pants and get on the table, which she did. The lady then put a rubber tube or catheter and some cotton or gauze into her private parts, while appellant 'just sat around'. After a while appellant told her that she could go and instructed her to be back the next day. She did not know when the tube was taken out.

On the occasion just mentioned no one was in the room except appellant, the lady (who it appears was the defense witness, Mrs. Bailey) and the girl.

Returning the following day appellant, assisted by Margaret Bryant, Eva Smith and Charlotte Whitley, his employees, performed 'a curettement' or 'D.C.' and removed dead fetuses from the girl's womb.

Dr. Jackson testified that an abortion could be caused by the insertion of a rubber catheter into the womb so as to rupture the membrane which formed the sac holding the fetus.

The defense theory, supported by the testimony of the appellant and Mrs. Bailey, was that the girl was having difficulty and came to him for help; that he had her come back the next day because he was busy with other patients; that on her second visit he made an inspection, but did not have time and help to complete an examination and that when she came back that afternoon, after five, he completed his examination with the assistance of Mrs. Bailey, who inserted a catheter to drain her bladder and to secure a specimen of urine for examination.

Appellant and Mrs. Bailey denied that the catheter was inserted for the purpose of causing an abortion but both admitted that it was inserted.

The facts as to the removal of the dead fetus or twin fetuses the following day are not in material dispute. The real issue was whether the life of the fetus was destroyed by the insertion of the catheter the day before, or was due to other causes, such as the use by the girl of a pen staff and of hot ginger, or to syphilis, or other causes.

There is, however, testimony supporting the defense theory that the fetus which appellant removed had been dead for some time. Appellant said there was a tremendous odor. However, his former employee testifying for the State, when asked about a 'rather offensive odor', said 'Well, you didn't notice the odor too bad, no.'

Appellant's evidence also made issue as to whether the catheter was inserted with the design to destroy the life of the fetus or embryo, or was inserted to drain the bladder.

On this issue Mrs. Bailey testified that she inserted the catheter to drain the bladder, but on cross examination said that the catheter was inserted to a depth of some five to six inches from the opening into the uretha.

Dr. Collins and Dr. Rosenblatt, state witnesses, testified that the distance from the opening of the uretha to the bladder was from a half inch to an inch and a half.

In rebuttal, the State was permitted to prove and did prove that abortions were performed by appellant in the same manner, by the use of a catheter, upon two other females, each going to him for that purpose, and each returning for the final 'curettement', and each cautioned to remain silent.

The jury rejected appellant's explanation and defense, and we are called upon to determine three controlling questions: (1) Did the court err in refusing to charge upon the law of circumstantial evidence? (2) Is the evidence, viewed from the standpoint most favorable to the State, sufficient to sustain the conviction? And (3) did the court err in permitting the State to prove the two prior extraneous offenses, limiting such evidence in the charge to the purpose of showing the intent and system of the appellant as to the particular offense charged?

On the first issue, appellant urges that there is no direct proof that the fetus was alive in the womb of the girl when she was first examined by him.

The testimony of Dr. Jackson, that there was no evidence of other than a normal pregnancy in the early stages (8 weeks), together with the known fact of nature that the pregnancy, in the absence of an intervening cause, would continue and progress, is direct evidence that the fetus lived and progressed. Jordan v. State, 130 Tex.Cr.R. 182, 92 S.W.2d 1024.

There was no intervening cause under the State's theory, after Dr. Jackson's examination, unless it be the taking of hot ginger. Dr. Jackson had heard of no such method of abortion and there was no testimony that such would have any deleterious effect upon pregnancy. The girl had learned that she was pregnant, had been examined by Dr. Jackson who found no reason to expect other than a normal pregnancy and delivery. She was having no pain or trouble when she went to appellant for an abortion.

The evidence is direct, and viewed in the light most favorable to the jury's verdict, shows appellant's guilt as principal and is sufficient to sustain the conviction.

The testimony offered by the State in rebuttal, showing that two other women had gone to appellant for an abortion and had been relieved of their pregnancy by appellant and a lady by the insertion of a catheter and a curettement the following day, was admissible. This is so because the defense had made issue and attempted to defeat the testimony of the State by the claim that the girl came for treatment and not for an unlawful abortion; was examined but her pregnancy not interferred with by Mrs. Bailey; that the catheter was inserted to drain her bladder and obtain a urine specimen, and not to take the life of the fetus; and that the last operation was to remove a dead fetus, the life of which had been taken as a result of the girl's own act or because she had syphilis, or for some cause other than the insertion of the catheter.

Commission of other crimes may be shown where the intent becomes an issue, such as where it is claimed that the act in question was free from a criminal intent. 18 Tex.Jur. 68.

In order to prove purpose or design, evidence showing system is relevant and isolated offenses are admissible from which system may be inferred. Wharton's Criminal Evidence, 12th Ed., Sec. 237.

We see no material difference between the defense here raised and 'innocent intent' referred to in Gray v. State, 77 Tex.Cr.R. 221, 178 S.W. 337.

It is not, as appellant contends, a question of whether appellant in the last operation which he performed, assisted by his staff of three ladies, removed a dead fetus or twin fetuses, but whether the insertion of the catheter the evening before was made with the purpose and intent of taking the life of the fetus and did so, as contended by the State, or whether on the other hand appellant did not agree and intend to abort the girl with a catheter and did not take the life of the fetus or fetuses he removed the following day by insertion of a catheter.

In other words, the defense was that not only the insertion of the catheter but the entire proceedings were lawful and with innocent intent to treat the girl and not with intent to perform a criminal abortion upon her.

Evidence that, under similar circumstances, he had agreed to and did abort other pregnant women in the same manner and by the same method was admissible upon this issue of intent.

The court did not err in admitting the evidence mentioned, and limiting it in his charge to system and intent.

The judgment is affirmed.

DAVIDSON, Judge (dissenting).

Being unable to agree that this conviction should be affirmed, I respectfully record my dissent.

Clemmie Johnson, a fifteen-year-old Negro high school girl, discovered that she was pregnant as the result of repeated acts of intercourse with two different boys. She admitted that she attempted to destroy her pregnancy by piercing her privates with a pen and penstaff. Her pregnancy having been made known to her grandmother, the two, together with others, went to the office of Dr. Jackson for an examination of the prosecutrix. Dr. Jackson made the examination and found her to be approximately eight weeks pregnant. The examination was made on May 7, 1956.

On May 24th and 25th, in an endeavor to...