
    Ex parte VICK.
    (No. 10870.)
    Court of Criminal Appeals of Texas.
    March 23, 1927.
    1. Homicide <®=>18(2) — Abortion must-be with malice aforethought to render death caused thereby murder (Pen. Code 1925, arts. 1191, 1194, 1196).
    Under Pen. Code 1925, art. 1194, and in view of articles 1191, 1196, to render one guilty of murder because of death from abortion, elements of offense of murder, including malice aforethought, must be present.
    2. Homicide <©= I ( — “Murder” is voluntary homicide with malice aforethought.
    
      i “Murder” is voluntary homicide committed with malice aforethought.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Murder.]
    3. Bail <8=349 — State has burden to present evidence justifying denial of ball.
    Burden is on state to introduce evidence justifying denial of bail.
    4. Abortion <8=>2 — Physician has right to produce abortion to save life of mother of child (Pen. Code 1925, art. 1196).
    Under Pen. Code 1925, art. 1196, physician has right to produce abortion to- save life of mother of child.
    5. Bail <g=s49 — Evidence of murder in producing abortion’ held insufficient fo support denial of bail (Pen. Code 1925, arts. 1191, 1194, i 196).
    Under Pen. Code 1925, arts. 1191, 1194, 1196, evidence of commission of murder in production of abortion held insufficient to support denial of bail.
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    Application of' J. T. Vick for babeas corpus to be admitted to bail. From a refusal of bail, the applicant appeals.
    Reversed, and bail granted.
    
      Davenport & Crain, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

By complaint relator was charged with murder, and in a habeas corpus proceeding bail was denied him. According to the evidence, Rosa Touchstone, a married woman, about 18 years of age, became sick on February 26th and died on March 5th. As we understand the record, the appellant was a practising physician, and, together with his partner, attended the deceased. The mother of the deceased testified that she was with her .daughter all the time during her illness; that her stomach was much swollen on the night she died; that Dr. Yick and his partner visited the deceased two or three times a day during her illness; that one of them usually called in the morning; and that she Always had a bad spell in the evening, at which time the witness would call the doctor back. On the night that death occurred, the doctor was there until 12 o’clock. The deceased died at 3:30 a. m. Upon his leaving the doctor expressed the opinion that his patient was not as bad off as was thought by members of the family. The people were in poor circumstances. He gave the witness $10 and told her to' use $5 to pay the rent and the remainder to buy nourishment, and to tell the people to quit bothering his sick patient. The husband of the deceased testified to what purports to be a dying declaration of the deceased. He said that after stating that she was going to die, she said that Dr. Yick caused her condition; that she would have been all right if it had not been for Dr. Yick performing the operation upon her. The witness also testified that he lived with his wife; that she had a child seven months old; that six or seven weeks prior to her death she had missed her menstrual periods. According to the witness, he was present and heard a conversation between appellant and the deceased. We gather from the record that this was on the evening before she died. According to the witness, the doctor called and asked what was the matter, and deceased replied that she had a rag in her womb and-could not get it out; that the doctor took it out. The witness could not gather from the conversation who put the rag there. The doctor asked why she did not take it out, and she said that she could not find it. The witness testified that during her illness the deceased was given médicine which had been prescribed by Dr. Vick and his partner.

Abortion is committed by one who shall designedly administer or cause to be administered to a pregnant woman any drug or shall use towards her any violence or means externally or internally applied to procure an abortion. See article 1191, P. C. 1925.

In article 1194, P. C., it is declared that if death of the mother is occasioned by an abortion so produced, or by an attempt to effect the same, it is murder. In article 1196 it is said:

“Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”

It is not meant by article 1194,' supra, that the death attempted or produced by an unlawful abortion is necessarily murder. To render the offender guilty of murder the elements of that offense must concur with the criminal act. See Ex parte Fatheree, 34 Tex. Cr. R. 594, 31 S. W. 403; Jackson v. State, 55 Tex. Cr. R. 79, 115 S. W. 262, 131 Am. St. Rep. 792. In its present definition, murder is a voluntary homicide committed with malice aforethought, and, in the absence of that element, the offense would not be murder. Johnson v. State, 97 Tex. Cr. R. 659, 263 S. W. 924.

The burden is upon the state to introduce evidence which will justify the denial of bail. Ex parte Green, 102 Tex. Cr. R. 542, 279 S. W. 471. To meet this requirement in the present instance, it would be necessary, by competent proof, to establish the fact that the appellant was guilty of the offense of abortion as defined in article 1191, supra. As the facts are developed in the present case, he was a physician regularly called to .attend a woman who was sick. He gave her medicine, and, in accord with the state’s theory, he performed an operation which resulted in an abortion. He had a right to produce an abortion by the means mentioned if his acts were directed towards saving the life of the mother of the child. This is statutory. See article 1196, P. C., supra. He was not guilty of murder unless the acts attempting or producing the abortion were done with malice aforethought.

Without a discussion of the evidence in detail, the opinion is expressed that it is not sufficient to support the action of the court in denying bail. The judgment is reversed and bail granted in the sum of $2,500. 
      
      i=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     