Fretwell v. State

This case was affirmed at a previous day of this term, and now comes before us on motion for rehearing.

Appellant has filed a very able brief on his motion, and strenuously insists that the court erred in affirming the case. He contends that, under the facts, this court was in error in holding that the proof showed that the ergot, as actuallyadministered, was calculated to produce an abortion on the prosecutrix. 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 predicatedon 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. Rep.. 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. We would further state that our attention has also been called to the three refused charges. If the State had made a case on the testimony, and it became a vital question whether the means used was calculated to produce an abortion, this charge should have been given.

For the errors discussed, the motion for rehearing is granted; and the judgment is reversed and the cause remanded.

Motion granted and reversed and remanded.