Smith v. State , 112 Miss. 802 ( 1916 )

Etheridge, J.,

delivered the opinion of the court.

Dr. F. C. Smith, the appellant, was indicted and convicted in the circuit' court of Amite county on the charge of attempting to commit an abortion in said county, and it is claimed that the indictment is insufficient to charge any crime under the law of this state, and that there is no such crime as an attempt to commit an abortion, and that the court erred in granting the instruction for the state on that charge, and also that error was committed in admitting on cross-examination the defendant’s witnesses to prove good character, evidence that the-witnesses had heard that the defendant had been accused of this offense before, and also that prosecuting attorney, privately employed, committed error in referring to the failure of the defendant’s wife to testify. The indictment charges that the appellant did willfully, unlawfully, feloniously design, attempt, and endeavor to kill, abort, and destroy one unborn quick child, then and there in the womb of Mrs. Kiser, a woman then and there pregnant with unborn quick child, by then and there willfully, unlawfully, and feloniously administering to and inserting in the womb of the said Mrs. Kiser certain foreign substances, to wit, linen gauze and a rubber catheter, with the feloni- . ous intent then and there the said unborn quick child, in the womb of said Mrs; Clara Kiser as aforesaid, willfully, unlawfully, and feloniously to kill, abort and destroy, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi. The statutes of the state make it a crime to administer to any woman any medicine, drug, or substance whatever, or use or employ any instruments or other means with intent thereby to destroy such child, and one who shall thereby destroy such child shall be guilty of manslaughter, unless the same shall have been advised by a physician to be necessary, etc. Code of 1906, section 1235. Section 1049 of the Code provides that every person who shall design and attempt to commit an offense and shall do any overt act towards the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof shall be punished, etc., providing the different punishments. We think the indictment sufficiently charges the crime under these statutes.

The exception in the statute, “unless the same shall have been advised by a physician, etc.,.” need not be negatived as it is an affirmative defense which, if relied npon, must he shown by the defense, or appear affirmatively in the evidence.

The indictment avers it was unlawfully and feloni-ously done, arid that negatives its lawfulness.

The instructions comp]ained of is the only one given for the state, and charges the jury that- if they believe ^beyond a reasonable doubt from the evidence in the case that Dr. Smith willfully, unlawfuly, and feloni-ously inserted in the uterus, or womb, of Mrs. Kiser a rubber catheter and gauze with the intention and purpose of causing an abortion or destroying • an unborn quick child then in said womb, he is guilty as charged in the indictment, and the court further instructs the jury that this is true, even though you may believe from the evidence that Mrs. Kiser was an unmarried woman, and that said unborn child was an illegitimate one. If there is any error whatever in this instruction it is cured hv instruction No. 1 for the defendant, but we believe the instruction to ,be free from- error.

The defendant introduced witnesses to prove his character as to the trait charged against him in this indictment, and on the cross-examination of these witnesses they were asked and permitted to answer that they had heard charges of this kind against him before, hut that they knew personally nothing of these matters. The defendant having put his unaracter as to this charge in evidence, it was permissiole for the state to cross-examine the witness in the manner which it did in this case,' and there is no error in any of the foregoing assignments.

But the case must be reversed because of the comment made by prosecuting counsel privately employed in this case, in which he said:

“He said he always wanted some lady present when he examined another lady, and that he carried this woman from his house or sent her from his house where his wife was to the hotel where he could have an outside witness in Mrs. Leona Anders, whom lie called to the room, hut would not examine the woman in his wife’s presence, and it’s strange, gentlemen, that he has not called his wife here as a witness for him.”

This court has repeatedly held-that the failure of a husband to call his wife as a witness for him in a criminal case is not a proper subject of comment by* counsel. Johnson v. State, 94 Miss. 91, 47 So. 897; Scott v. State, 80 Miss. 197, 31 So. 710; Cole v. State, 75 Miss. 142, 21 So. 706; Johnson v. State, 63 Miss. 313; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440.

The ease is' accordingly reversed and remanded.

Reversed and remanded.