
    SCOTT v. STATE.
    (No. 7310.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.)
    Criminal law <&wkey;4l9, 420(10) — Admission of physician’s testimony that prosecutrix told him defendants procured abortion on her held reversible error.
    In a prosecution for abortion, where prose-cutrix was asked no questions as to any statement by her denying the abortion, admission of a physician’s testimony that she told him that defendants procured an abortion on her, and that her ill health was caused thereby, was reversible error; the question not being directed at the • cause of her illness, and the facts elicited -being inadmissible to sustain or bolster up her testimony.
    Appeal from District Court, 'Jefferson County; W. H. Davidson, Judge.
    E. F. Scott was convicted of abortion, and he appeals.
    Eeversed and remanded.
    Howth & O’Fiel and Lamar Hart, all of Beaumont, for appellant.
    E. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMOEE, J.

Appellant was convicted in the district court of Jefferson county of abortion, and his punishment fixed at two years in the penitentiary.

No good purpose can be served by a recitation of tbe facts in this case, or a discussion of questions raised on the appeal which would he of no benefit to any future decision of this case, or as affecting any matter of procedure save the single question considered by us and here set forth as the basis for our conclusion.

Appellant’s bill of exceptions No. 1 complains of the fact that while the witness Dr. T. W. Hancock was on the stand testifying, the state was permitted over objection to propound to the witness this question:

“Is it not a fact that Ollie Mae Long told you in February or March, 1021, while you were treating her in Dcweyville, that the defendant Scott and'his codofendant Dr. J. S. Paul procured an abortion upon her in Beaumont, Tex., in December, 1923, and that her condition was then due to the abortion?”

The reference in the bill of exceptions to December, 1921, is clearly erroneous, as it appears elsewhere that December, 1920, was the date of the alleged’ abortion and was the transaction then under inquiry, and we will treat the matter as if the date referred to was December, 1920. The above question was objected to by the appellant on the ground that neither the defendant nor his codefendant Paul were present at the time said statement was made by Ollie Mae Long to Dr. Hancock, and the testimony was hearsay and not binding upon appellant and was greatly prejudicial.

Ollie Mae Long was the prosecuting witness in the instant case, and the state relied for a conviction almost entirely upon her testimony. No other witness testified to the abortion, or to any facts or circumstances from which the inference of an abortion could have been drawn. Said witness was vigorously attacked by the appellant by the testimony of many witnesses that her reputation was bad, and by further testimony as to individual acts of unchastity on her part with various men, and further as showing her to have been afflicted with a venereal disease. The learned trial judge qualifies appellant’s bill of exceptions presenting the complaint under discussion with the statement that this testimony was admitted because of .attacks on the reputation for chastity and virtue of the witness Ollie Mae Long, and because of questions propounded to her upon cross-examination relative to statements made by her to the effect that her ill health resulted from a railway accident, and because of testimony of various parties relating to a contract made between Miss Long and an attorney regarding bringing a suit against the railroad to recover for said injuries. It is shown that when the appel-ant’s objection to the above question was overruled the witness answered same in the affirmative.

An analysis of said question makes apparent the fact that it was not directed at the cause of her illness, nor are we able to perceive how the facts referred- to would become admissible upon the hypothesis that they sustained or bolstered up the witness as to testimony given toy her regarding the railway accident and the statements made by her to other parties concerning same. Reverting to said question for a moment, we observe that in it Dr. Hancock states that she told him that defendant on trial and his codefendant procured an abortion upon her i-n Beaumont, Tex., in December, 1920. This is the pivotal point involved in the instant prosecution. No question seems to have been asked prose-cutrix relative to any statements made by her concerning the abortion, the language or substance of which involved a denial on her part of such abortion. Many authorities are cited by Mr. Branch, in his Annotated P. C. (page 114), sustaining the proposition that it is error to permit the state to bolster up its witness by proof that the witness made the same or similar statements in harmony with his testimony on the present trial, if such witness has not been attacked on the' statements sought to be supported. To the same effect are many authorities cited by Mr. Branch in section 181 and 182 of his valuable work. We are unable to bring ourselves to the conclusion that the admission of this evidence was -not a violation of the rules adhered to by this court, and we are constrained to conclude that such evidence was prejudicial to the appellant and must have been used to his injury.

For the error complained of, the judgment of the trial court will be reversed, and the cause remanded. 
      
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