Thomas v. State

• Citation: 156 Ala. 166,47 So. 257
• Parties: THOMAS v. STATE.
• Decision Date: 18 May 1908
• Court: Supreme Court of Alabama

47 So. 257

156 Ala. 166

THOMAS v. STATE.

Supreme Court of Alabama

May 18, 1908

Rehearing Denied July 3, 1908.

Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.

Charles E. Thomas was convicted of an attempt to procure an abortion and appeals. Affirmed.

Anderson and Denson, JJ., dissenting.

The indictment was as follows: "The grand jury of said county charge that before the finding of this indictment Charles Thomas willfully administered to Onether Crawford who was a pregnant woman, a drug or substance, or used or employed an instrument, to procure her miscarriage; the same not being necessary to preserve her life, and not done for that purpose, against," etc.

Demurrers were interposed as follows: "(1) It is not alleged what instrument was used, nor that the name and kind or description of such instrument was unknown to the grand jury. (2) It is not alleged how or in what manner the said instrument was used. (3) It is not alleged what drug was used. (4) It does not allege the manner of the use of the drug. (5) It is not alleged that the kind or character of the drug was unknown to the grand jury. (6) It is not alleged that the manner of administering said drug was unknown to the grand jury. (7) It is not averred what substance was used or administered to said Crawford, or that the same was unknown to the grand jury. (8) For that each of the alternative averments of the means used or employed to produce said miscarriage do not set forth with sufficient particularity the means used to commit the offense. (9) The indictment is not according to the form prescribed by law. (10) For that sufficient is not alleged in said indictment for the defendant to know with what criminal offense he is charged. (11) For that it is not alleged in said indictment that said Crawford was pregnant at the time the defendant administered said drug or substance, or used and employed said instruments. (12) For that it is not alleged that the drug or substance administered to said Crawford was calculated to produce her miscarriage. (13) It is not alleged that the instrument used was such a one as was calculated to produce the miscarriage of said Crawford. (14) It does not set forth the nature and cause of the charge against the defendant."

The state was permitted to show the condition of Onether Crawford at the time of the trial, and that she was not in a physical condition to appear at the trial. On cross-examination of defendant, who had testified that he was a practicing physician of 18 years' standing, the court permitted the state to ask and required the defendant to answer the following questions: "If you had given a teaspoonful of ergot every three or four hours to a pregnant woman, what effect would it have?" "Is not the effect of too much ergot to contract and open the womb?" "Is not ergot, when given to a pregnant woman, except in small quantities, dangerous?" "Would not the effect of giving a spoonful of ergot every three or four hours to a pregnant woman be likely to produce an abortion?"

In his oral charge to the jury the court said: "If it is proven beyond a reasonable doubt that both drugs and instruments were used by the defendant to commit abortion, then the allegations of the indictment are proven so far as concerns the means and instrumentalities alleged; and it is not necessary to prove beyond a reasonable doubt which was used whether drugs or instruments, just so you are convinced beyond a reasonable doubt that one or both were used."

The following charges were refused to the defendant: "(A) Gentlemen of the jury, you cannot find the defendant guilty if you believe that an abortion was committed on Onether Crawford, or attempted to be committed on her, in any other way than by the use of an instrument. (B) If you believe from the evidence that the witness Matilda Sigler was participating and assisting in producing an abortion on Onether Crawford, you cannot convict the defendant, unless the testimony of said Matilda Sigler is corroborated by testimony, which the jury believe, connecting the defendant with the commission of the offense. (C) If your minds are left in doubt and uncertainty as to whether or not the defendant did anything to Onether Crawford to cause her to miscarry, your verdict should be for the defendant." (9) Affirmative charge. "(12) The fact that the defendant is a party to this suit does not on that account render him less credible as a witness than if he were not a party to the suit. (13) If you believe the evidence you cannot convict the defendant because of any drug or substance administered by him to Onether Crawford. (14) If the defendant was treating Onether Crawford for flooding or too free discharge during her menstrual periods, and not for the purpose of producing a miscarriage, then your verdict should be for the defendant. (15) Unless it has been proven to the jury, and to each member of it, that the defendant used an instrument on Onether Crawford in such way as to produce a miscarriage on the Friday evening referred to by the witness Matilda Sigler you cannot convict the defendant. (16) Although you may believe that Onether Crawford did miscarry, and that it was brought about by the treatment she received from the defendant, yet you cannot convict the defendant, unless it has been proven to you beyond a reasonable doubt that he used or employed an instrument to procure such miscarriage, and that he willfully used it for that purpose."

Cabiniss & Bowie and E. H. Dyer, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

ANDERSON J.

The indictment in the case at bar was framed under section 4305 of the Code of 1896, which both defines, as well as prescribes a punishment for, "attempts to procure abortion." The statute makes the Code form of indictments sufficient in all cases in which said forms are applicable. Section 4894 of the Code of 1896; Bailey v State, 99 Ala. 143, 13 So. 566. In statutory offenses, where no form of indictment is given, it is usually sufficient to follow the statute. In charging common-law offenses, although we have statutes fixing the punishment, and sometimes changing them from misdemeanors to felonies, and the reverse, where no form is prescribed, the indictment should be framed under the common law. Goree v. State, 71 Ala. 7; Grattan v. State, 71 Ala. 344. But in cases where the statute, not only prescribes a punishment but also defines the offense, notwithstanding a similar offense existed at common law, we think the indictment would be sufficient if the offense is described in the language of the statute...