Wandell v. State
| Decision Date | 07 February 1894 |
| Citation | 25 S.W. 27 |
| Parties | WANDELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Bexar county; G. H. Noonan, Judge.
H. J. Wandell, convicted of abortion, appeals. Reversed.
Tarleton & Altgelt and W. S. Anderson, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.
The indictment charges that appellant "did unlawfully and willfully and designedly furnish to Annie Welter, who was then and there a pregnant woman, an instrument commonly known as a `catheter,' for the purpose, on the part of the said Annie Welter, of procuring an abortion of herself with the means aforesaid, so furnished her by the said H. J. Wandell and James E. Odey, and the said H. J. Wandell and James E. Odey then and there knowing the purpose intended by the said Annie Welter as aforesaid, and which said means for the purpose of procuring an abortion were calculated to produce that result, and did then and there, by the means of said instrument furnished, as aforesaid, by the said H. J. Wandell and James E. Odey to the said Annie Welter, procure an abortion of the said Annie Welter, contrary," etc. Article 536, Pen. Code, reads as follows: "If any person shall designedly administer to a pregnant woman, with her consent, any drug or medicine, or shall use toward her any violence, or any means whatever, externally or internally applied, and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years; if it be done without her consent the punishment shall be doubled." Article 537, Pen. Code, reads as follows: "Any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice." The indictment embraces both articles, — blends the facts in one count, which constitute the consummated offense, (abortion,) with those which make the doer thereof an accomplice to the abortion. This is bad pleading. It should have declared on the first article in one count, and on the second in another count. While the woman upon whom the abortion was attempted or produced may not be punishable, though consenting thereto, yet, being a witness, she may be an accomplice, within the meaning of article 741, Code Crim. Proc. In this case she was evidently consenting to all that was done by appellant and Odey; at least, the evidence very strongly tends to show that she agreed and consented to all that was done to effect the abortion. This...
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