
    SIMMS v. STATE.
    (No. 11475.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1.Criminal law <&wkey;7l9(0 — In prosecutor’s argument in abortion trial, his exhibiting metallic instrument and informing jury defendant used similar instrument, when there was no such evidence, held ground for reversal.
    In prosecuting attorney’s argument in trial of a physician for abortion, Ms exhibiting a “sound” which is a metallic, mechanical instrument capable of producing an abortion, and informing jury that defendant used similar instrument in producing abortion, held, ground for reversal, where there was no such evidence and state’s allegations of use of mechanical means by defendant to produce abortion were, if supported at all, supported only weakly by circumstances.
    2. Criminal law &wkey;>9<40 — Refusing new trial on discovery of evidence, woman had attempted to perform abortion on herself before visiting defendant held error.
    Where, after verdict of guilty had been returned in prosecution of physician for performing abortion, defendant and counsel discovered that, prior to woman’s visit to defendant she had attempted to perform an abortion on herself by use of a small rubber hose, held that trial court’s refusal to grant new trial on ground of such newly discovered evidence was error.
    3. Criminal law &wkey;»772(6) — Failure to present affirmatively in charge the chief defense that prosecutrix herself caused abortion held error.
    In prosecution of physician for performing abortion, court’s failure to present affirmatively in his charge the chief defense that prosecu-trix herself caused the abortion, the only way in which such defense was presented being in the language: “You are instructed that the defendant would not be guilty * * . * if any abortion was - caused or produced that was caused by some other person or means than that alleged in the indictment,” held error.
    Commissioners’ Decision.
    Appeal from District Court, Cherokee County ; C. A. Hodges, Judge.
    P. A. Simms was convicted of having committed the offense of abortion, and he appeals.
    Reversed and remanded.
    D. L. Harry, of Jacksonville, John A. Ford, of Waco, and G-. W. Cribs on, of Jacksonville, and Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant. >.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was charged by indictment with having committed the offense of abortion upon Ola McDaniel, by the use of a metallic instrument, the name and character of which was to the grand jury unknown.

She twice visited the office of appellant, a negro physician, who on both occasions inserted a speculum in her vagina, but used no other mechanical instrument that she knew of. A speculum was described as an instrument in common use by physicians for the examination of the private parts of a woman, which is neither intended to, nor likely to produce an abortion. She was taken ill with severe pains after this, last visit and on the next day called Dr. Moore, who attended her until she delivered a dead foetus or embryo child, some two to four months old. The bowels of the child had been punctured, and according to Dr. Moore the foetus was in a state of decomposition which indicated it had been dead for several days. He used a speculum on the prosecuting witness upon his first visit, of the same character as that used by appellant, and found no evidence of injury from external causes to the fcetus. The fluid sack immediately in front of the entrance to the wound was intact, and was still intact about two days later when the foetus was expelled. Prosecuting witness admitted on cross-examination the use of various medicines, prior to her visit to appellant’s office recommended as being effective in producing an abortion. She testified to symptoms of fever and pains indicating a septic condition arising from the presence of a dead foetus in her womb, all prior to her visit to appellant. The state was unable to show the use of any mechanical means by appellant, other than an instrument in common and legitimate use by physicians.

With the state’s allegation of the use of mechanical means by appellant to produce an abortion, weakly supported, if at all, by circumstances, the district attorney exhibited to the jury a “sound” (being a metallic, mechanical instrument capable'of such use) and stated: “He used an instrument somewhat similar to that.” He had, theretofore over appellant’s objections, exhibited this same instrument in the presence of the jury to witnesses. There is not any evidence in the record, which we have been able to find, to the effect that appellant used a sound or any instrument similar to a sound.

The unsworn ex parte statement of the district attorney given without opportunity of cross-examination was thus made, to supply a fact apparently wholly lacking in the evidence. This being the positive statement of a fact outside of the record, accompanied by the exhibition of an instrument capable of producing an abortion, and being upon one of the vital and meagerly proven issues in the case, presents such a serious probability of injury, that we would not feel justified in overruling appellant’s assignment presenting this matter. Numerous authorities might be cited supporting the above conclusion. Some of them are as follows: Tillery v. State, 24 Tex. App. 273, 5 S. W..842, 5 Am. St. Rep. 882; Orman v. State, 24 Tex. App. 504, 6 S. W. 544; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Vernon’s C. C. P. 1925, vol. 2, p. 92, for full collation of authorities.

Motion was made for a new trial based upon newly discovered evidence of the following character: It came to the knowledge of appellant and his counsel after the verdict of guilty had been returned, that prior to her ever having seen appellant, prosecuting witness had tried to perform an abortion on herself by the use of a small rubber hose about the size of a lead pencil. This was described by some of the witnesses as being effectively used by women for that purpose. Witness denied on the trial that she had ever used any mechanical means of any kind to produce an abortion, but upon being confronted with the statement of a witness after the trial had ended, to the effect that she had, she then disclosed same for the first time and filed an affidavit that such was a fact. Without lengthening this opinion unduly, suffice it to say that appellant and his counsel, we think, were not lacking in diligence in trying to ascertain this fact from witnesses prior to the trial.- In view of the issue overwhelmingly made at the trial that witness herself was responsible for the death of the child and her own miscarriage, we think the court erred in refusing to grant a new trial, that this evidence might become available to appellant. Gainer v. State, 89 Tex. Cr. R. 538, 232 S. W. 830; Brown v. State, 13 Tex. App. 59; Monroe v. State, 105 Tex. Cr. R. 543, 289 S. W. 686; Anderson v. State, 93 Tex. Cr. R. 634, 248 S. W. 681; Barrett v. State, 98 Tex. Cr. R. 627, 267 S. W. 511.

Complaint is made, that the court failed to properly and affirmatively present in his charge his main defenses, and that said charge presents same only in a negative way. From whát has been said, it already appears that the issue of whether or not the prosecuting witness herself was responsible for the abortion, if any, was overwhelmingly raised by the evidence. The only way this was presented was in the following language:

“You are instructed that the defendant would not be guilty * * * if any abortion was caused or produced that was caused by some other person or means than that alleged in the indictment.”

The theory of the state was pertinently and affirmatively charged upon, and the appellant’s theory should have had a like presentation. It has been said:

“The defendant is entitled to a distinct and affirmative presentation of the issues arising upon his evidence, in order that the jury may not be induced to ignore his defenses upon the supposition that the court did not deem them of sufficient importance to justify consideration, and for the further reason that without such presentation the jury are in no condition to make an intelligent selection of the law which should govern them in case they should find that the defendant’s evidence was true.” Reynolds v. State, 8 Tex. App. 414, citing Heath v. State, 7 Tex. App. 464; Miles v. State, 1 Tex. App. 514.

On another trial the jury should be pointedly and pertinently instructed on the defensive issues raised by the evidence.

For the errors discussed, the judgment is reversed, and the cause remanded.

PER OU.RIAM.

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. 
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