Dowdy v. State , 19 Ala. App. 503 ( 1923 )

The appellant was convicted of inducing or attempting to induce abortion, miscarriage, or premature delivery of a woman; said offense is defined in section 6215, Code 1907, as amended by an act approved April 21, 1911 (Acts 1991, p. 548).

Demurrers were interposed to counts 1 and 2 of the indictment. The court gave the general affirmative charge for the defendant as to count 1; it is therefore unnecessary to consider the demurrers to that count. If it be conceded that count 1 was defective when there is a good count and a bad count in an indictment, a general verdict of conviction will be referable to the good count. Handy v. State, 121 Ala. 13,25 So. 1023; Gleason v. State, 6 Ala. App. 49, 60 So. 518. The second count is in the words of the statute, and is in the words of the statute, and is sufficient. Griggs v. State,18 Ala. App. 467, 93 So. 499; Oliver v. State, 16 Ala. App. 533,79 So. 313; Thomas v. State, 156 Ala. 156, 47 So. 257.

Dr. Isbell testified that the defendant told him on March 21, 1920, that he had made arrangements with Mat Singleton for him (defendant) and Dr. Isbel to go down and "relieve that girl of that young'n"; that Singleton had agreed to give defendant $300; and that he (defendant) would pay Dr. Isbell half the fee. Dr. Isbell further testified that he told defendant it was dangerous, and he would better let it alone, and that defendant said Singleton was wanting help and wanting it bad. There was evidence that the woman was six or seven months advanced in pregnancy; and that on March 19th she was examined, and the child was alive; and that about March 19th or 20th, and several days before, she was seen by a physician; that she was pregnant, and her condition normal; and that an operation was not necessary to save her life. There was evidence that an operation on the woman was performed by defendant and another the latter part of March, and that after the operation "he (the defendant) said it was tumor that ailed Minnie." She was in bed about 15 days after the operation, and Dr. Miller saw her about April 3d, and there was no baby there.

It was competent to show that Singleton was at the house of the woman, Minnie Bagwell, about the time of the alleged commission of the crime, as tending to show the motive of the defendant at the time of the operation upon the woman, which the evidence tended to show Singleton had employed him to perform.

It was not incumbent upon the state in this prosecution to show the exact dates of Dr. Miller's visits. He testified that the best he could remember "offhand" he saw the girl about the 19th or 20th of March; that he could not remember the exact date of his last visit, except by reference to his records. He testified independently of his records as to the approximate dates, although he did testify that the exact date of his last visit, March 24th, was taken from his records, and that he did not have his records in court with him.

The evidence of the defendant tended to show that no instrument was used, except a speculum, which was used to inspect the parts, and not to deliver the woman of a child; that morphine and chloroform were administered for the purpose of relieving pain; that the child had been dead from 10 days to 3 months; that it was 4 or 4 1/2 months developed; that the skin slipped off; that there was an odor of putrefying tissue; that the removal of the fetus was necessary to save the life of the woman, and was done for that purpose.

Objection was made to the portion of the solicitor's argument to the jury as follows:

"If you do what you came here for and what you were summoned here for and what your oaths required you to do, you will convict the defendant under the testimony."

Counsel may argue every inference arising out of the evidence. A conviction is asked under the evidence, and the solicitor did not transcend legitimate bounds of argument. Cross v. State, 68 Ala. 476; Lide v. State, 133 Ala. 43,31 So. 953; Jones v. State, 136 Ala. 118, 34 So. 236.

Wide latitude is allowed to comments on evidence in argument of counsel. Mitchell v. State, 18 Ala. App. 471, 93 So. 46.

That portion of the argument of the solicitor as follows: "You are not here to turn this man loose because he wears a collar and tie, or to convict a man that is in rags and strings" was objected to. The effect of the argument was that you are not to acquit a man because he is well dressed or to convict because he wears poor clothing. This was not objectionable as a statement of fact, and we fail to see how it could have prejudiced the defendant.

There was no error in that portion of the oral charge of the court to which exception was reserved. The charge must be taken as a whole.

Charges 1, 2, and 3, the general charge for the defendant, were properly refused. There was a conflict in the evidence, and there was ample evidence to sustain a conviction.

Charges 4, 5, 6, 11, 16, and 18 were properly refused. They invade the province of the jury. Skains Lewis v. State,21 Ala. 218; 1 Mayf. Dig. p. 168, par. 11.

Charges 8, 9, 12, and 14 do not correctly state the law. If the defendant aided, abetted, or advised the abortion he was guilty, unless the same was necessary to save the woman's life, and done for that purpose. Furthermore, charge 12 relates to count 1 of the indictment, and the general charge for defendant (given charge 1) was given by the court, and refused charge 14 is covered by given charges 7, 8, and 9.

Refused charge 7 and faulty. An abortion may be induced by the use of the hand. Furthermore, if the defendant aided, abetted, or advised the abortion he was guilty, unless it was necessary to save the life of the woman, and done for that purpose. However, the charge is covered by given charge 7.

Charges 8 and 9 are faulty. The indictment charges the use of "an instrument or other means" to induce the abortion. "Other means" include the hands, and the use of the hands alone to induce an abortion may be sufficient.

Refused charges 10 and 15 are covered by given charges 8 and 9. Refused charge 13 is covered by given charges 7, 8, and 9. Refused charges 15 and 17 are covered by given charges 8 and 9.

Charge 19 is faulty in requiring the state to make proof beyond all doubt; what is required is proof beyond a reasonable doubt.

Charges 20, 24, 25, 26, 27, and 28 were properly refused. It was not incumbent upon the state to prove that the child was not dead when it was removed from the body of Minnie Bagwell. And charge 25 is not predicated on the evidence.

Charges 21, 22, and 29 were faulty. Aiding or abetting in the procuring of an abortion is a crime denounced by statute, and it is not necessary that the defendant should have himself actually "committed an abortion," or himself have "performed an abortion."

Charge 23 was faulty. It called for an acquittal, if there was a reasonable doubt in the mind of any of the jurors. Goldsmith v. State, 105 Ala. 8, 16 So. 933; Pickens v. State, 115 Ala. 42, 22 So. 551.

Charges 30, 31, 33, and 34 were properly refused. They were not predicated on the evidence. Edwards v. State, 205 Ala. 160,87 So. 179. Charge 32 is covered by given charges 13, 14, 15, 16, and 17.

The statute upon which the prosecution was founded provides for a fine of "more than five hundred dollars and imprisonment in the penitentiary for not less than two nor more than five years." Acts 1911, p. 548.

The failure of a statute to fix a maximum fine does not render it unconstitutional. 16 Corpus Juris, p. 1359, par. 3202 (3); Palmer et al. v. State, 168 Ala. 124, 53 So. 283.

The defendant was fined $500, and sentenced to imprisonment in the penitentiary for not less than two nor more than three years. A defendant may not complain that the amount of the fine assessed against him was less than that prescribed by the act. An error in his favor is no cause for a reversal at his instance. Henry v. Smoot, Minor, 18; Dade v. Buchannon's Adm'r, Minor, 417; Ooton v. State, 5 Ala. 463; Covy v. State, 4 Port. 186.

We find no error in the record. The judgment of the circuit court is affirmed.

Affirmed.