Tonnahill v. State

• Decision Date: 29 January 1919
• Docket Number: (No. 5111.)
• Citation: 208 S.W. 516
• Parties: TONNAHILL v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W. 516

TONNAHILL v. STATE.

(No. 5111.)

Court of Criminal Appeals of Texas.

January 29, 1919.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Sam Tonnahill was convicted of abortion, and he appeals. Reversed and remanded.

Wear & Frazier, of Hillsboro, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The conviction was for abortion charged to have been committed by administration of a drug. The theory of the state and testimony of the prosecutrix were that appellant gave to the prosecutrix a certain medicine which was subsequently used by her in producing the abortion. She said that when he handed her the medicine he told her to keep it, and he would tell her when it was time to take it, or to keep it until she heard from him, and that she afterwards heard from him, and that some time after hearing from him she took the medicine. She claimed to have received a letter from him, saying:

"I suppose it was from him, as he was the only one that knew I had this medicine."

The letter was lost, and its existence and appellant's connection with it developed a sharp issue of fact.

In submission of the case to the jury, the appellant requested the following charge:

"The prosecutrix, Lena Ward, testified that when the defendant gave her certain drugs, which she claimed to have subsequently administered to herself and caused her to abort, he told her not to use such drugs until she heard from him. If such was the fact, the defendant would not be guilty of the crime charged, unless he did subsequently give her instructions with reference to the use of said drugs. Now, the burden of proof is upon the state to prove beyond a reasonable doubt the defendant's guilt, before you would be authorized to convict him. You are instructed, therefore, that even though you may believe the defendant gave Lena Ward the medicine, still, unless you believe from the evidence beyond a reasonable doubt that the defendant subsequently directed the said Lena Ward to use the medicine, which she claims to have been theretofore delivered to her by him, you will return a verdict of not guilty, and so say."

It is conceded by the Assistant Attorney General that this charge should have been given, and that its refusal is error. In this conclusion we agree with him. Appellant was not present at the time the medicine was taken by the prosecutrix. Exception was also reserved to the charge, because it submitted a state of facts for the consideration of the jury, as a basis of conviction, which were not charged in the indictment. The indictment charged the abortion was procured by administering and causing to be administered to prosecutrix, a pregnant woman, with her consent, a drug and medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb of the...