Jarquin v. State ( 1950 )

GRAVES, Judge.

Appellant was charged with producing an abortion upon a pregnant woman and destroying the life of the fetus in the womb of said woman, and upon her conviction she was awarded a term of five years in the penitentiary.

Appellant’s Bills of Exception Nos. 1, 2, and 3 related to what is termed an “unlawful search” of a certain house on the Goeth Road, just outside the limits of the city of San Antonio. The testimony shows that three officers, a justice of the peace, an investigator for the district attorney’s office, and a deputy sheriff, had received a call of some kind, the character of which is not shown in the record, and they appeared at a house called a “shack” with some broken windows covered with curtains. Upon approaching such house, one of the officers smelled ether and blood, and heard someone groaning. While looking at the house, a Mrs. Solis pulled back the curtain from a window and the officers, upon looking in, saw appellant between the legs of this groaning woman, with a metallic instrument in her hand. Upon a request to open the door by Mrs. Solis and an officer, the appellant opened the door to said house, and the officers found this unconscious woman on an operating table groaning; and many instruments usable in performing an abortion, as well as a quantity of blood and some ether in a can were in said room.

The victim of this abortion testified that she was pregnant about three months, and that she first contacted a doctor, who confirmed her suspicions; that she then contacted appellant who agreed to relieve her of her pregnancy, and she paid appellant the sum of $125.00; that on the day in question, she came to appellant’s house, which was shown to be some 10 or 12 miles away from this shack, and there she was given some kind of an injection' and then taken by appellant to this shack, where she was given another injection, and finally given ether; that she did not know anything else until she awakened in the Robert B. Green Hospital; that she was then no longer pregnant and that her menses afterwards returned.

The officers testified to the copious blood found in a bucket mixed with water and a piece of flesh therein, as well as bloodstained instruments hidden under a bed in such shack, and also to seeing blood on the floor.

All of these things were introduced in evidence, and are objected to under the claim that the officers obtained the same in violation of the law by an unlawful search.

Neither the ownership nor the possession of this shack is shown to have been in the appellant. She lived some miles away therefrom. Mrs. Solis seemed to have exercised some dominion over this place, and she obtained entrance for the officers. We find her pulling back the curtain so that the officers could actually see the appellant in action; and we also find her telling appellant to open the door and let the officers in. Regardless of who owned or occupied the house, appellant is not shown to have done so, and she had no reason to complain of the search of another’s house. As to the arrest, Articles 212 and 213, Vernon’s Ann. C. C. P., provide for an arrest without a warrant by a peace officer or a magistrate when a felony is committed within his view, and the presence of the officers not being shown to be unlawful, the arrest of appellant was also lawful. The arrest being lawful, it carried with it the privilege of search. We are cited herein to many cases relating to violations of a federal statute and prosecutions in Federal Courts relative to unreasonable searches and seizures as alleged precedents holding this present testimony inadmissible.

We note from the case of Wolf v. Colorado, 338 U. S. 25, 93 L. Ed. 1782, as well as that of Lustig v. United States, 338 U. S. 74, 93 L. Ed. 1819, that the Supreme Court of the United States has held that in a trial in a state court the Fourteenth Amendment does not prohibit the introduction of testimony found by means of an unreasonable search and seizure as contrary to due process of law.

It is also complained because the different instruments seized were brought before the jury and identified by a physician as useful in matters such as herein charged. It will be remembered that this was a case of circumstantial evidence, and it seems to us that such instruments, some of them covered with blood, taken into consideration with other circumstances, tended strongly to show the commission of this charged offense. We think the surrounding facts found at the time this unfortunate lady was undergoing some kind of manipulation of her body could certainly aid the jury in determining what appellant was doing to this unconscious woman at the time appellant was seen over her body.

Bill No. 5 relates to an isolated portion of the court’s charge wherein it was said that “by the term ‘abortion’ is meant that the life of a fetus or embryo shall be destroyed in a woman’s womb, or that a premature birth (thereof) be caused.” This quotation is a part of the statute, Art. 1191, Vernon’s Ann. P. C. However, it is noted that in the indictment, as well as in the portion of the charge applying the law to the facts, no mention is made of the latter phrase relative to causing a premature birth of an embryo; and it was emphasized therein that they must find, beyond a reasonable doubt, that a fetus was destroyed in the woman before a conviction could be had.

Complaint is made of the statement of the district attorney when he referred to the numerous metallic instruments found on the scene of this alleged offense as “death dealing instruments”, as shown in Bill No. 14. It is shown by said bill that the trial court immediately instructed the jury to disregard such statement. The testimony did show that many of such instruments were useful in opening the private parts of a woman, that some of them covered with blood, that portions of human flesh were found in this room, and that a placenta and an umbilical cord were also there found, as well as a large quantiy of blood; and it seems fairly evident that a fetus was destroyed in the body of this woman by the same certain bloody instruments. We see no serious incurable error shown.

Complaint is also made because of the fact that the district attorney saw fit to say:

“Mr. Brown has complimented me very graciously. He is the outstanding criminal lawyer of San Antonio about whose health all criminals inquire before they do anything wrong.”

Again the careful trial court instructed the jury to disregard such statement. It is not shown that such remark was not in answer to any statement made by appellant’s counsel. Instead, it is shown by the complained of statement that such seemed to be in reply to something said by Mr. Brown relative to the district attorney as follows:

“That Wm. N. Hensley was the Sir Gallahad of the legal profession, an ambitious young man, and a diligent prosecutor, who, to obtain the first abortion conviction in the history of Bexar County, will do anything.”

We think that the remark complained of was probably called for by the statement of counsel. Surely the court’s prompt withdrawal thereof would leave the matter without error.

It is noted that the trial court correctly charged the jury upon the allegation in the indictment and that was the destruction of the life of the embryo.

We have not written on the bills seriatim, but have endeavored to utilize appellant’s brief as to the ones therein discussed. All bills not written on are overruled.

Mention is made of the severity of this verdict, it being the highest allowed by law, namely, five years. The enormity of the crime that the jury said this appellant had committed and the danger, not only to appellant’s victim but also to society, and the circumstances shown to have surrounded this act, certainly merits punishment, and we see no disparity between the facts and the verdict.

The judgment will be affirmed.