Gray v. State

The writer agreed to an affirmance of this case on a former day of this term, but a more thorough study of the record has convinced him that he was in error in so doing on one proposition, and that is, there was no error in admitting testimony that appellant had produced or attempted to produce an abortion on other and different people than the person charged in this indictment. In the original opinion it is stated: "It is perfectly manifest from the record in this case, and the statement of facts, that appellant's contention, to prevent conviction, was twofold: first, that said Mrs. Moore was not pregnant and that appellant did not know it if she was, and, second, that the acts she performed upon her were solely and simply for the innocent purpose and intention of bringing on the suppressed menses of Mrs. Moore under the belief that she was not pregnant." If this was the correct construction to place on the record and evidence, then the opinion would be correct beyond question, to our minds; for if the State shows one to have committed an act forbidden by law, and as a defense to such act the person on trial makes a defense that if he in fact did the acts alleged by the State, he did so innocently or by mistake, then proof of other similar offenses is admissible to rebut the proof of innocent intent or mistake. After a renewed study of the record we have become convinced that the evidence offered by appellant tended only to show that Mrs. Moore was not pregnant at the time she committed the act complained of, and this was the defense relied upon. The evidence shows that Mrs. Moore had passed her menstrual period some seven or eight days, and she was fearful that she was pregnant. That she went to appellant to have this condition remedied. Appellant requested her to wait a month and see if her menstruation would not return without an operation. This Mrs. Moore declined to do, and insisted upon appellant performing the operation. We think the evidence demonstrates appellant did so for the purpose and with the intent, if Mrs. Moore was pregnant, to produce an abortion. This, we have come to the conclusion, is the only reasonable deduction from the evidence before us, and it does not raise the issue that she, at the time she performed the operation, knew that Mrs. Moore was not pregnant, and only performed the operation to bring about a flow of the menses. But the acts performed were done to cause a flow of the menses in order to bring about an abortion if Mrs. Moore was pregnant. There is, to our mind, no evidence offered or introduced that tended to prove other than that the acts which appellant performed were with the intention of producing an abortion if Mrs. Moore was pregnant. In the original opinion are quoted some opinions which hold that if the statute provides that in order to obtain a conviction, the State must show a guilty intention, other offenses which tended to show the intent of the person on trial would be admissible, even though the evidence offered by appellant did not raise the issues of mistake or innocent intent. We opine that the statutes of those States in which it was so held did not provide as does our Code, that "when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act," and "the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act." (Arts. 51 and 52, Penal Code.)

Under these provisions of the Code it is the rule in this State, that when an accused is shown to have committed an act prohibited by law, there must be some evidence adduced on the trial raising the issue that the act was committed with no intent to produce the result, or the intent will be presumed from the doing of the act which results in a violation of the law. In a case of theft, it must be shown that the property was taken with the intent to deprive the owner of its value, and with the intent to appropriate such property to the use and benefit of the person taking same. But it is only necessary to prove that the property was taken, and that the accused took it and had it in his possession. Under such a state of facts our law presumes the intent to deprive the owner of the value of it, and the intent to appropriate it to the use of the taker, unless the evidence elicited on the trial raises the issue that it was taken under a claim of right, by mistake, or some other innocent motive, showing a lack of intent to take and appropriate another's property. If the evidence raises such an issue, then evidence of similar offenses is admissible to rebut this evidence of innocent intent. In those cases which hold other offenses admissible, it is shown that it is only in those cases where the evidence adduced on the trial raised the issue that there might be no guilty intent that evidence of other offenses became admissible and for that reason. Gilbraith v. State, 41 Tex. 567; Long v. State, 11 Texas Crim. App., 381; Davidson v. State, 12 Texas Crim. App., 214; McCall v. State, 14 Texas Crim. App., 353; Holmes v. State, 20 Texas Crim. App., 509; Harwell v. State, 22 Texas Crim. App., 251; Kelly v. State, 31 Tex.Crim. Rep.; Fielder v. State, 40 Tex.Crim. Rep.; Stanfield v. State, 43 Tex.Crim. Rep.; Lynne v. State, 53 Tex. Crim. 375. On the other hand, it seems to be the well settled rule in this State, when the evidence adduced on the trial leaves no question as to intent of the accused in doing the act complained of, proof of other offenses, even though of similar character and kind, is not admissible on the issue of intent. Harris v. State, 55 Tex.Crim. Rep.; Davenport v. State, 49 Tex. Crim. 11; Clark v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 131; Bink v. State, 48 Tex.Crim. Rep., 89 S.W. Rep., 1075; Johnson v. State, 57 Tex.Crim. Rep.; Miller v. State, 59 Tex.Crim. Rep..

Since the writer has been on the bench he had once before occasion to investigate this question (Bowman v. State,70 Tex. Crim. 22), and we there collated the decisions of this court, and held that proof of other offenses is not admissible to show intent, unless the evidence adduced on the trial renders it an issue in the case, and have again investigated the question, and our opinion thus expressed has been confirmed in view of the provisions of our Criminal Code, that the intent will be presumed when the means used are such as would ordinarily result in the commission of the offense complained of. In this case, from a re-reading of the record, we have come to the conclusion that the sole defense relied on by appellant, as shown by the testimony, was that Mrs. Moore was not pregnant at the time she inserted the rubber catheter in her womb. There was no denial of the fact that the catheter would not produce an abortion if in fact Mrs. Moore was pregnant, and no evidence tending even to raise that issue.

Under such circumstances we are of the opinion the motion for rehearing should be granted, and the case reversed, and on another trial all evidence of other and different offenses excluded.

The motion for rehearing is granted, and the judgment is reversed and remanded.

Reversed and remanded.