Reum v. State

• Decision Date: 13 December 1905
• Citation: 90 S.W. 1109
• Parties: REUM v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 1109

REUM v. STATE.

Court of Criminal Appeals of Texas.

December 13, 1905.

Appeal from District Court, El Paso County; James R. Harper, Judge.

Ana Reum was convicted of an abortion, and she appeals. Affirmed.

Rehearing denied January 17, 1906.

M. W. Stanton, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an abortion, and her punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The evidence shows substantially that Ana Reum was a female midwife or physician living in El Paso, and that the prosecutrix, Julia Hudson, called on her at her office, and complained that her menses had been stopped about two months, and asked appellant if she did not think she had a cold. Appellant informed her she would have to examine her to see. After the examination, she told her that she was pregnant, and she would have to perform an operation on her, for which she would charge her $50. Prosecutrix told her she did not have that much money. Appellant then told her she would do it for $40. Prosecutrix paid her $29 down. It seems that appellant, either at that time or the next day, gave her some medicine. Witness states that when she made the contract she gave her some medicine — gave her something in a glass and some pills to take. The medicine in the glass looked like something green; also gave her some little white pills, and some little round pills; told her to take two at once, and told her to take the round white pills one every three hours. She took the same as directed. After making the contract, she told her to come back the next morning. Prosecutrix went back the next morning, and appellant performed the operation on her. Prosecutrix states that appellant used two instruments. One was something like a curling iron, but did not have a handle to it — seemed to be iron, and was straight; and the other had a thing like a screw on it. Appellant put it in prosecutrix, and turned it around. She told her it hurt her stomach. Appellant told prosecutrix she was performing an operation on her. She told prosecutrix that she had put the instrument into her womb; told her that something might pass from her that evening; that if anything did not pass to come back the next morning. Prosecutrix went back the next morning, and told her that nothing had passed. Afterwards, about 8 o'clock that evening, a chunk of blood passed from prosecutrix. The clot of blood was about the size of a hen egg, and prosecutrix threw it into the wash basin, and afterwards emptied it into the toilet. She afterwards became sick, and telephoned for appellant to come. Subsequently Dr. Anderson was sent for. He came and made some examination of her. After this appellant came and was informed by prosecutrix that Dr. Anderson had been there, and she told prosecutrix not to send for him any more; that he did not like her, and would likely get them into trouble. Appellant visited prosecutrix several times while she was sick. Subsequent to this prosecutrix was removed to the hospital, and was there attended by Dr. Anderson and Dr. Krauss. They examined her, and testified that they washed out or cleansed her private parts, and took therefrom a part of an after-birth; that prosecutrix was threatened with septic poison on account of such foreign substance being in her uterus. Both of these witnesses testify that there was no question that the foreign substance was a part of the after-birth, which indicated unmistakably pregnancy. Appellant introduced Dr. Edgar, who testified that he examined prosecutrix, and she was not pregnant. This is a sufficient statement of the testimony to discuss the questions raised.

The indictment contains six counts. Appellant contends that most, if not all, are defective. The first count charges that appellant unlawfully and designedly administered to Julia Hudson, a pregnant woman, with her consent, a certain drug and medicine calculated to produce an abortion, and with the intent then and there on the part of appellant thereby to cause and procure, and which did then and there cause and procure, the abortion and miscarriage of her, the said Julia Hudson, of a child wherewith she was then and there so pregnant. The second count charges that appellant designedly, etc., administered to Julia Hudson, then and there a pregnant woman, with her consent, a drug and medicine calculated to produce an abortion, and did then and there by means of said drug and medicine procure an abortion of the said Julia Hudson. Both of these counts are essentially similar. Appellant contends that said counts are defective, because they do not state that said Julia Hudson was pregnant. In this appellant was evidently mistaken. It was also contended said counts are defective, because they do not name or describe the medicine, showing it was an abortifacient. The counts do charge that said drug and medicine was calculated to produce an abortion. This seems to be in accord with the authorities in this state. Watson v. State, 9 Tex. App. 237; Cave v. State, 33 Tex. Cr. R. 335, 26 S. W. 503. These were both cases of attempted abortion, but we can see no difference in principle between the case of an attempt and one of actual abortion as to the allegation of the means used. We think each of said counts sufficiently alleged that by the means used appellant did procure an abortion on said Julia Hudson. It was not necessary to further define or allege an abortion.

The third count charges that appellant made an assault on prosecutrix, and did then and there designedly, etc., with the consent of the said Julia Hudson, thrust and force into the womb and private parts of the said Julia Hudson a certain metallic instrument calculated to produce an abortion, and did then and thereby procure an abortion of the said Julia Hudson. This count is challenged because of its failure to name or further describe the said metallic instrument. It occurs to us that the same rule would be applicable as to a description of the means used in this count as in the two preceding counts. However, if there was any difficulty on this subject, the fourth count cures it by alleging that the name and character of said instrument was unknown to the grand jurors and could not be further described. An examination of the proof discloses this to be true. In our opinion, it would make no difference whether the former count was good in this respect or not. It was cured by the next count. The fact that the fourth count was good in this respect would remove any possible injury to appellant, even if it be conceded that the third count was defective.

The fifth count charges that appellant designedly, etc., by the use of drugs and medicines administered to the said Julia Hudson, and by violence then and there internally and externally applied by said appellant in and upon the said ...