Bristow v. State , 137 Tex. Crim. 220 ( 1939 )

Appellant has presented an application for leave to file a second motion to reinstate the appeal. The application is accompanied by a supplemental transcript in which it is shown that notice of appeal has been properly carried into the minutes of the court since we rendered an opinion herein overruling appellant's motion to reinstate the appeal. We are constrained to grant appellant's application. The appeal is therefore reinstated and the case considered on its merits.

Virgie Buckley, a witness for the State, testified to the effect that she had become pregnant and had gone to appellant for the purpose of having an abortion performed. Appellant told her that she "would do away with the child" for twenty-five dollars. The witness later returned to appellant's home with her father, Opal Burnett, and Claudia Buckley. At that time appellant inserted a tube into the womb of the witness. At this juncture we quote the witness' testimony as follows: "She left the tube in me. She said to take that tube out about five o'clock the next evening. I left it in me and took it out at the time she said to. When I first got there Mrs. Bristow asked my father to come in the house and something was wrong with the car and he fixed that and then he come on in there. I don't know whether she had put that tube in me already when my father came in or not, he was in another room. * * * I was in a healthy condition under the circumstances prior to the time she inserted that tube in me. After my father got in the house he said she would have to do the work before he would pay her and she said she guaranteed her work. She wrote a check payable to cash in the sum of twenty-five dollars. * * * I commenced having pains first late Sunday evening and then I went to bed. * * * I next saw Mrs. Bristow (appellant) Sunday night after midnight. My daddy went after her. She said to send for her if we needed her. She said that when we were at her house. When she got there Sunday night, she told Claudia to get some hot towels. I think Claudia got the towels and put them on my stomach, and Mrs. Bristow sat there awhile and then reached her hand up in me and I don't know what she done. I did not see her relieve me of anything. I know that she did relieve me of something. She put it in a box."

The father of Virgie Buckley testified to having accompanied his daughter to the home of appellant and having paid appellant twenty-five dollars to produce an abortion. Further, he testified that appellant waited on his daughter the following Sunday. According to his version, after appellant had attended his daughter someone handed him a box, which he carried away and buried.

Among other things, Claudia Buckley testified that she was present when Virgie Buckley was having labor pains; that appellant came to the house on the occasion in question; that appellant put some vaseline on her hand and arm and "ran her hand up Virgie." We quote from the testimony of this witness as follows: "After the child was born Mrs. Bristow (appellant) cleaned her up so to speak, and brought out the afterbirth. The afterbirth was put in a five gallon can and Mr. Buckley carried it off. I did not put the child in a box but I got the box for that purpose. I wouldn't touch it myself and wouldn't again if it was to do over. * * * I got the rags to wrap it in. * * * After it was put in the box and I handed it to Mr. Buckley I didn't see it any more. I don't know what Mr. Buckley did with it."

Loss Woods, sheriff, testified that, after conferring with Mr. Buckley, he went to the place where the foetus was buried. He testified: "It was a human body. It was very small, I would estimate it to be about 8 or 9 inches long. We taken it up and brought it to town and took it to the hospital up here. It was in a shoe box."

Dr. Cogburn testified: "I am a physician. * * * On or about June 6, 1938, Sheriff Loss Woods and yourself brought something to the hospital. It was a foetus of an unborn child. From examination of it, I would judge it to have been approximately four months, but it is hard to tell definitely the age of a foetus."

Dr. Stubblefield testified that he examined Virgie Buckley during the month of April, 1938, and found that she was pregnant. He testified: "I examined Miss Buckley to see whether or not she was pregnant and she was pregnant. Apparently, so far as I could tell, she was in normal condition; the foetus was in a live state."

Appellant did not testify.

It is manifest that the State relied upon direct evidence. Hence appellant's exception to the charge for its failure to embrace an instruction covering the law of circumstantial evidence was not well taken.

Virgie Buckley was not an accomplice witness. Therefore appellant's objection to the charge of the court for its failure to instruct on accomplice testimony as to said witness was properly overruled. We quote from Branch's Ann. P. C., Sec. 1821, as follows: "The court does not have to apply the law of accomplice testimony to the testimony of prosecutrix, although she consented to the procuring of the abortion, or to the attempt to procure it."

Appellant's bills of exception are in question and answer form. No certificate of the trial court showing the necessity for such form appears. It has long been the rule in this Court that bills of exception in question and answer form are not entitled to consideration. Govance v. State, 2 S.W.2d 853, and authorities cited. Where a bill of exception appears in question and answer form, in order to receive consideration, a certificate of the trial judge must show the necessity for such form. Lee v. State, 274 S.W. 582; Govance v. State, supra.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.