Fondren v. State , 74 Tex. Crim. 552 ( 1914 )

The indictment charges that W.A. Link and Rachael Fondren, believing Daisy Moore to be pregnant at the time of the assault did unlawfully, wilfully and designedly, and with the consent of Daisy Moore, and with the further intent to procure an abortion upon Daisy Moore, thrust and force into the private parts and womb of Daisy Moore a certain instrument, the name, character, description and substance of said instrument being to the grand jurors unknown, said instrument, in the manner so used, being then and there calculated to produce an abortion upon the said Daisy Moore, and by the means aforesaid, and by other means to the grand jurors unknown, he, the said W.A. Link, and she, the said Rachael Fondren, did then and there procure an abortion upon the said Daisy Moore, and did then and there, thereby, as aforesaid, destroy, in the womb of the said Daisy Moore, the life of the foetus and embryo which was then and there alive in the womb of Daisy Moore, and that appellant in Parker County prior to the commission of the offense, did unlawfully and wilfully advise, command, and encourage the said Rachael Fondren to do and commit the offense of abortion, and did agree with the said Rachael Fondren that he would pay such sum of money as was necessary for the operation in procuring said abortion upon Daisy Moore, in Tarrant County, Texas, the said W.E. Fondren not then and there being present in Tarrant County, Texas, at the time and place of the commission of the offense in Tarrant County, Texas.

So it will be seen that appellant was charged as set forth in the indictment with being an accomplice to Rachael Fondren by agreeing with her to furnish the money to secure the services of someone in Tarrant County to produce an abortion upon Daisy Moore.

The uncontroverted facts show that appellant, a widower, married Rachael Moore, a widow. At the time of their marriage appellant had six children, and Rachael Moore, subsequently Rachael Fondren, had three. To them after their marriage were born five children. Daisy Moore, the prosecutrix, was something like seven or eight years of age at the time appellant married her mother. Without going into a detail of the State's testimony, it may be briefly stated as the theory of the prosecution that appellant had been having intercourse with Daisy Moore. At the time of the trial she was nineteen years of age. That this intercourse had been going on between them for several years, and as a result she became pregnant. Her testimony further indicates that with his consent and perhaps advice she and her mother went to Tarrant County for the purpose of getting rid of the unborn child. That he carried them to the railroad some ten or twelve miles distant from their home, where they took the train going to Fort Worth. After reaching Fort Worth they went to two doctors who declined to have anything to do with the matter, one of them at last directing them to Dr. Link, one of the alleged principals in the indictment. They went to see Dr. Link, and he finally agreed to and did perform the abortion. For his services Mrs. Rachael Fondren gave Link a check for $200, which was subsequently paid by her husband, the appellant. Without going into detail, for the evidence is voluminous, this is the substance of the State's case. These matters were all denied by appellant and his wife as to appellant's connection with it. Appellant denied having intercourse with the girl, and Mrs. Fondren contradicts her daughter on all material questions with reference to appellant's relation to the girl. She denies the conversation between herself and her husband and Daisy Moore with reference to the trip to Fort Worth. Appellant denies having any connection with Daisy Moore, and he and all of the family, several of whom testified, tend to exclude such an idea. The only intimation it seems of Daisy Moore's condition to the family, so far as appellant's side of the case is concerned, arises from a conversation Daisy Moore had with her mother just before they went to Fort Worth, in which Daisy Moore told her mother that she had been ruined, and, in substance, that the child was dead and unpleasant odors were being emitted. In this connection it was shown that she had what the witnesses call fits, fainting spells. Her mother then carried her to Fort Worth to have her treated, appellant knowing nothing of these matters, according to her testimony and according to his testimony. She induced her husband to let her take Daisy Moore to Fort Worth. He objected on the ground that he could not spare both of them, that he needed someone to cook at home, but he finally yielded, took them to the depot, and sent them to Fort Worth. The theory on which she went to Fort Worth was to have her daughter treated for these fainting spells, or to ascertain what was the matter, and get medical treatment. She herself had been informed by Daisy Moore of the condition, but appellant knew nothing of this. They were to return on Saturday. Appellant went to the depot for the purpose of conveying them home. Mrs. Fondren returned but Daisy did not. This led to a conversation between himself and his wife as to why Daisy did not return, and as to what was the matter with her, and Mrs. Fondren informed appellant that the doctor diagnosed the case as being retroversion of the womb and spinal trouble, and that it would take some time to cure her, and she left her under the treatment of a doctor and nurse. Among other things, she informed her husband that she had drawn a check for $200, at which he became rather indignant and told her the doctor had robbed her and he would not pay it, but she finally persuaded him into paying it, and he did order the check paid. It is also testified by Mrs. Fondren that her daughter at the time she informed her of her ruined condition also in answer to queries by her mother as to who was the author of same, said she did not know, that she had been having intercourse with several, and she could not tell who was the author of her pregnancy. This may be deemed a sufficient statement of the case without going into details.

The indictment charges appellant with being an accomplice in that he advised Mrs. Fondren and commanded her and encouraged her to commit the offense of abortion, saying he would pay such sum of money as was necessary in performing the operation. It does not charge him with having advised or encouraged Link, who performed the operation. The facts for the State only show he agreed to pay for services of someone to commit abortion. His wife was not to produce the abortion, but only to employ someone to do so. There are several very interesting questions raised, among others, motion to quash the indictment, motion in arrest of judgment, and quite a number of bills of exception, and several matters of more or less importance. Without going into the different grounds upon which it is contended the indictment is insufficient, and that there is no case made against appellant under the statute, I would state that I am of the opinion that the indictment does not charge an offense against appellant, nor does the testimony show a case. The offense of abortion is thus defined: "If any person shall designedly administer to a pregnant woman with her consent any drug or medicine, or shall use towards 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 double." The statute with reference to relation of accomplice to the crime of abortion thus defines it: "Any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice." It will be noticed that that portion of the indictment which charges appellant with being an accomplice does not charge appellant withknowingly furnishing any means for procuring the abortion withknowledge of the purpose intended. It does charge that he wilfully advised, commanded and encouraged Rachael Fondren to secure an abortion, but does not charge that he knowingly furnished the means for procuring it. As the statutory definition requires, first, that the accomplice shall furnish the means to procure the abortion, and, second, that he must know the purpose for which the means was intended, it will be necessary to charge the wording of the statute, otherwise the statutory offense would not be charged in the indictment. For this reason the indictment fails to charge an offense. But beyond this, taking the charging part as to appellant for all that it does charge, it does not allege an offense under the article quoted. Under this article in order to constitute appellant an accomplice he must furnish the means for procuring the abortion, and know the purpose intended when he furnishes the means. Going to the definition of abortion, we find that the "means" set out is any drug or medicine, orviolence, or any means whatever externally or internally appliedwhich shall procure the abortion; if the abortion is procured by these means, the offense is complete. But it will be noticed that nowhere in the indictment does it charge appellant with furnishing "any means" to produce an abortion. It is not alleged that he furnished "any drug or medicine," or that he furnished any "instrument" by which the abortion could be produced; nor does it charge that he furnished "any means" whatever to bring about an abortion. The only allegation is that he advised his wife and commanded and encouraged her to go into Tarrant county and secure someone to produce the abortion, agreeing to pay the incurred expenses. In order to constitute him an accomplice the indictment must charge that the accused furnished some "means," either a drug, medicine or instrument by which the "violence" was committed, or some "means" by which the abortion was brought about. In this particular case, under the facts the prosecutrix testifies that the abortion was brought about by inserting an instrument in her womb. This was the "means" used by Link under the State's view of the case. A casual inspection of the indictment shows that appellant was not charged with furnishing Mrs. Fondren or Dr. Link with the instrument used. If this statute means anything, in order to constitute a party an accomplice he must "furnish the means" for procuring the abortion, "knowing" at the time that the means furnished was to bring about an abortion. Under the definition of abortion, of course the "means" must be some of those set forth in the statute, such as drugs, medicine or some violence or instrument, or something of that sort, which applied to the woman direct produces the abortion. In this case appellant is not charged, nor does the proof show that he furnished any drug or medicine, or instrument or anything else by which this abortion was brought about, but all the evidence disproves such state of case. Our statute provides that there shall be no offenses in Texas except such as are provided by statutory enactment. The article of the code reads as follows: "In order that the system of penal laws in force in this State may be complete within itself, and that no system of foreign laws written or unwritten may be appealed to, it is declared that no person shall be punished for any act or omission unless the same is made a penal offense and a penalty is affixed thereto by the written law of this State." The written law of this State is above quoted, that in order to constitute a party an accomplice he must furnish the "means" by which the abortion is brought about, knowing the purpose intended at the time he furnished the means, and as the Legislature has thus defined this offense, in the trial of cases, the courts must be governed by the definition given by the Legislature. The Legislature has not seen proper to extend the general doctrine of accomplices to this character of case, and it would seem that the general doctrine of abortion not only under the statute but everywhere is that there must be means furnished which, when applied, produces abortion. The simple advising and commanding and encouraging is not sufficient to constitute the accomplice. If appellant had been present at the time of the commission of the offense, and aided or encouraged Link in inserting the instrument or furnished him the instrument, we would have a different case, but there is no such charge as this in the indictment, and no proof to sustain it had there been such charge. He was not present, and the State's case is bound up in the proposition that he was in Parker County at the time the operation was performed in Tarrant County. It may be further stated here that the general doctrine as set forth in the statute does not apply to abortion, because the Legislature has seen proper to give a different definition to the term "accomplice" as applicable to cases of abortion. The general doctrine of accomplices found in the code is thus defined: "An accomplice is one who is not present at the commission of an offense but who before the act is done advises, commands or encourages another to do the offense or who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid, or who promises any reward, favor or other inducement or threatens any injury in order to procure the commission of the offense, or who prepares arms or aid of any kind prior to the commission of an offense for the purpose of assisting the principal in the execution of the same." The latter clause of this general definition only seems to be in harmony somewhat with the definition of accomplice to abortion. That provides that the accomplice must "furnish the means" to commit the abortion, "knowing" it to be committed. The last clause of the general definition is he who prepares arms or aid of any kind prior to the commission of the offense for the purpose of assisting the principal in the execution of the same. In the absence of the specially enacted definition of accomplice to the crime of abortion, it could be possible and perhaps probable, that the general definition might be applied in cases of abortion, but the Legislature has seen proper to specially define who is anaccomplice to the crime of abortion, and having so defined it, the courts will be bound by the definition given, and this under the rule that the inclusion of one excludes all other means, and in the crime of abortion the accomplice must be brought withinthe statutory definition of furnishing the means knowingly forthe purpose of bringing about the abortion, and, of course, subsequently the abortion must be brought about. All offenses in Texas are statutory. We find also the code has this further provision: "In the construction of this code each general provision shall be controlled by a special provision on the same subject if there be a conflict." The general definition ofaccomplices covers a much wider range of criminal matters than does the special definition with reference to abortion, and therewould be a conflict between the two to that extent inasmuch as the Legislature saw proper to confine the culpability of theaccomplice to furnishing the means by which the abortion is committed. In looking at and construing an article definingaccomplice to abortion, we find the Penal Code further provides that "every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words of a law." Applying that rule, we find that the "plain import" of the definition of "accomplice to abortion" confines the acts and the culpability of the accomplice to the meansfurnished which brings about the abortion when applied. We find another provision of our Penal Code in the following language: "Words which have their meaning specially defined shall be understood in that sense, though it be contrary to the usual meaning, and all words used in this code except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed." Applying that statutory rule to the definition of "accomplice" to the crime of abortion we find that the Legislature has confined it specially from this viewpoint to the acts of the party furnishing the"means" by which the abortion is brought about or consummated. These statutes have been so often construed I deem it not necessary to cite authorities. In the code we have twodefinitions of accomplices, both of which have been quoted; oneis the general definition, and the other is the definitionspecially confined to the crime of abortion. It applies to no other crime. Then under these statutory prescribed rules of construction, the conclusion would seem to be irresistible that in the crime of abortion no one can be an "accomplice" except those who furnish means knowingly to bring about an abortion. Tested by these rules, this indictment does not charge an offense against appellant as an accomplice, nor do the facts prove a case against him. He furnished nothing in the way of drugs or medicines or instruments or anything at all. The only charge the State has made against the accused is that he commanded and advised his wife to have this abortion committed in Tarrant County, agreeing to pay the necessary expenses. The money he furnished would not bring about an abortion. It is not "means" by which an abortion can be brought about. This must be done by some of the "means" set forth in the statute such as medicine, drugs and violence and things of that sort that actually produced an abortion on the female. The word "means" used in the statute it has been held must be actually used or applied. It is not so much the intent, but it is the actual application of the means in cases of abortion. This has been decided in a number of cases by this court. In Fretwell v. State, 43 Tex.Crim. Rep., on motion for rehearing, at pages 510-511, we find this language: "In the original opinion we held that the means used referred to the doses of the ergot as prescribed by appellant, and did not refer to the doses as actually taken by the prosecutrix. There was testimony in the record showing that if prosecutrix had taken the ergot within the three days as prescribed by appellant, that it was calculated to produce an abortion. None of them, however, testified that the medicine as taken was calculated to have that effect. She should have taken the medicine according to the prescription in three days, whereas she took it in small doses and consumed ten days in taking it; and as she actually took the medicine, none of the expert witnesses testify that it was calculated to produce an abortion. The statute does not seem to be predicated on the means prescribed, evidencing the intent of appellant, but on the means actually used; and this construction of the statute is borne out by the decisions of this court. Williams v. State, 19 S.W. Rep., 897; Cave v. State,33 Tex. Crim. 335. So, notwithstanding the doses prescribed may have been calculated to produce an abortion as testified by the physicians, yet the doses actually taken by the prosecutrix were not shown to have been calculated to produce an abortion. Appellant's guilt does not appear to be predicated on his intention, but on the actual appliance of the means prescribed. If this were not a correct interpretation, and appellant's guilt depended alone on his intent, he would be guilty if he made the prescription and delivered it to prosecutrix, although she may not have taken any of the ergot." Now applying the reasoning of this decision to the case here, appellant did nothing in the way of furnishing means and furnished no means by which an abortion could be brought about; he simply agreed with his wife and encouraged her, under the State's case, to go to Fort Worth to have an abortion performed, and to pay the expenses. She was not even to commit the abortion, but hire it done. None of this includes any of the statutory methods by which an abortion could be brought about. Make application of the decision just quoted and there is nothing that would bring appellant within the ruleas an accomplice to this crime. Had he furnished the prosecutrix with the medicine for the purpose of bringing about an abortion and she committed the abortion on herself, he might have been a principal, but in that event not an accomplice. This was decided in Willingham v. State, 33 Tex.Crim. Rep.. See also 1 Am. Eng. Ency. of Law Practice, pp. 118-119. In that case the doctrine was laid down where a party furnishes the means with intent to produce an abortion he is a principal and not an accomplice, though not present when the means was used by the female, and though the female was desirous of and consented to what was done to produce the abortion. It seems in that case Willingham furnished the woman the means by which the abortion was to be brought about. She would not be subject to a prosecution for a violation of the law by committing an abortion upon herself; she would be an innocent party under the statute, and this being true, the party furnishing the means to the woman to bring about the abortion upon herself would be a principal. In order to constitute him an accomplice to the crime of abortion it would be necessary for him to furnish the means which produce the abortion, and this to some third party, that is, someone other than the woman herself, and that that party used it in bringing about the abortion. In 1 Am. Eng. Ency. of Law and Practice, page 119, it is said: "The means struck at by the statutes are the unlawful supplying or administering to, prescribing for, or advising, or causing to be taken by a pregnant woman, any drug, poison, substance, or other thing — some statutes say noxious thing, — or unlawfully using or causing to be used any instrument or other means whatever, with intent to cause or procure an abortion." So from the standpoint of the general authorities the rule is the same as under our statute prescribed by the Legislature. This court is not authorized to create offenses, nor is it authorized by construction to prescribe the definition of offenses. That belongs to the legislative department. The statute prescribes that all offenses must be plainly defined by the Legislature. I see my brethren, however, refer to article 85 of the Penal Code, which says there can be no accomplice to the crime of manslaughter and negligent homicide, as sustaining their position that the accused in this case is brought within the general definition of accomplices and not within the specially defined term of accomplice as created by the Legislature. I do not understand how article 85 can sustain their view. Under that article there can be no accomplice to manslaughter or negligent homicide. The reading of that statute excludes all possibility of such a thing as an accomplice to either manslaughter or negligent homicide. Here the Legislature expressly defines what an accomplice is as it relates to the crime of abortion. The Legislature did not except accomplices out from the crime of abortion as it did in manslaughter and negligent homicide, but expressly enacted that where they brought themselves within the statutory rule that he would be guilty as an accomplice and not exempted from punishment.

My brethren invoke the rule of liberal construction prescribed in the Code of Criminal Procedure (White's Ann. C.C.P., art. 25). That statute does not apply to penal statutes prescribing punishment and defining offenses. I have already copied those from the Penal Code. The article relied on by them only pertains to practice and procedure and not the penal statutes.

There are, in my judgment, other questions which require a reversal of this judgment, but my brethren have seen proper to hold the other way, and it is doubtless useless to undertake a discussion of those as shown by the record. There is one question which I will mention without going into a discussion of it. There was quite a lot of so-called testimony introduced showing conversations and advisory counsel among themselves as between the sister of the prosecutrix, Pansy Kirby, and her husband, and his advice to her to go to her grandfather and grandmother's in Parker County and advise with them about this trouble, and subsequent conversations between these parties, all of which occurred in the absence of appellant and could not, therefore, be binding upon him, and should not be held to affect his case adversely. There is also some evidence introduced as to conversations between the assistant county attorney and Pansy Kirby and others at the residence of Kirby, which I deem unnecessary to reiterate, but all bearing upon the same question as to why the witness Pansy Kirby brought about this prosecution, and explained why she had conversations with the county attorney, her grandfather, her grandmother, her husband and others. These matters were res inter alias acta and not binding on the defendant, and for which he was not responsible, and could not be. This testimony was evidently damaging, because appellant received a punishment of five years in the penitentiary, which is the highest prescribed for this offense. There might have been less ground for reversible error had he received the minimum punishment. Without going further into these matters or discussing them any more at length, I have been unable to agree with my brethren as to the sufficiency of the indictment to charge an offense against appellant, and that the evidence is sufficient to show that he was an accomplice to the crime of abortion such as is denounced by the statute. I am further of the opinion that the majority opinion has gone too far and has created an offense by construction not enacted by the Legislature. Taking the evidence in its strongest light for the State, it does not prove a case under the statute. I do not care to discuss these questions further.

For the reasons indicated I most respectfully enter my dissent.

ON REHEARING. June 24, 1914.