Hunter v. State , 38 Tex. Crim. 61 ( 1897 )

DAVID SOFT, Judge.

Appellant was convicted of willfully and designedly attempting to produce an abortion on one Florence Johnson, then and there a pregnant woman, by administering to her, with her consent, a certain drug and medicine, well calculated to produce an abortion upon her.

On the trial, appellant did not reserve any exceptions to the rulings of the court, and files no assignments of error in this court. The first ground of the motion for a new trial in the court below avers that the court erred in permitting the county attorney to compel the defendant, while on the witness stand, to testify to the fact that he had had carnal intercourse with the prosecuting witness, Florence Johnson. If appellant conceived the idea that this ruling of the court was error, he should have reserved his bill of exceptions, and, not having done so, this court will not revise the ruling of the court.

It is also contended that the verdict of the jury is contrary to the law and the evidence, and that, the testimony fails to show that ergot, the medicine administered, was calculated to produce an abortion. There were three doctors who testified in regard to this matter. Dr. Brewton testified, that “ergot will under certain conditions produce an abortion, but it is not a drug that the physicians would use to produce an abortion in cases where it is necessary to produce that result.” Dr. Mason testified, that “ergot is calculated to produce an abortion. I have known it to produce that result. The quantity of ergot necessary to produce an abortion depends on the quality of the ergot, the susceptibility of the patient, and the stage of her pregnancy.” Dr. Blake testified, that “ergot will under certain conditions produce abortion, but I have never known a ease where it did. It is not the means used by the medical profession to produce an abortion. They generally use instruments or other means where they deem it necessary to produce that result. It is not the practice to give ergot to produce that result, as it is dangerous to give it to a pregnant woman.”

This is the testimony of the physicians in regard to this matter. We think this evidence is sufficient to sustain a conviction on this point. If these witnesses did not state fully all the circumstances under which ergot would produce an abortion, appellant could have ascertained these matters on cross-examination. Therefore, there is no merit in appellant’s contention that said witnesses failed to state the circumstances under which ergot would produce an abortion. The prosecutrix was not an accomplice, although she consented to take the medicine given her by appellant. Willingham v. State, 33 Texas Crim. Rep., 98. The judgment is affirmed.

Affirmed.