
    HAMMETT v. STATE.
    (No. 4926.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Criminal Law <§=814(17) — Circumstantial Evidence — Instructions. •
    In abortion case, where prosecuting witness testified fully to acts and conduct of both defendant and physician procured by defendant to perform abortion, court properly refused a special charge setting forth law of circumstantial evidence.
    2. Criminal Law <§=507(6) — Accomplice’s Testimony.
    In abortion case, prosecutrix is not accomplice.
    3. Criminal Law <§=H72(1) — Harmless Error — Conduct—Instructions.
    An accused cannot complain that trial court instructed entire panel of jury, upon general phases of procedure, prior to calling any cause for trial, where nothing was said calculated to prejudice his rights.,
    4. Criminal Law <§==>649(2) — Postponement-Absence op Witness.
    Where two were indicted together and filed statutory affidavits, and defendant was tried first, trial resulting in a hung jury, and thereafter other indicted person was convicted, there was no error on defendant’s second trial in refusing to postpone trial to. enable defendant to obtain testimony of convicted person.
    5⅛ Abortion <§=>3 — Principals.
    One who- has been unduly intimate with a female, and arranges with a physician for an abortion, and takes the female to the physician, is guilty as a principal, althóugh not actually present on occasion of premature birth; what was done being result of conspiracy.
    ■6. Criminal Law <§=547(3) — Evidence at Examining Trial — Proof.
    Court did not err in refusing to allow accused to prove by a county attorney whether prosecutrix had made certain statements on examining trial, examination being had from written document purporting to be examining trial testimony, document itself being b.est evidence of its contents.
    7. Criminal Law <§=422(6) — Declaration OF COCONSPIRATORS.
    Where defendant was unduly intimate with a female, and arranged with a physician for an abortion, he was a conspirator and prosecu-trix was properly allowed to testify that on occasion of one of her treatments physician stated in absence of defendant what amount of money defendant had paid him; the criminal conspiracy not yet having been fully concluded.
    8. Criminal, Law' <§=1170½(5) — Harmless Errois — Evidence.
    In a prosecution for abortion charged to have been accomplished by use of a metallic instrument, defendant was not prejudiced by cross-examination of his medical witnesses to effect that an abortion could be accomplished by other means than that charged in indictment, where no claim was made to jury or by prosecution that abortion was committed in any other way than that charged.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    G. C. Hammett was convicted of abortion, and lie appeals.
    Affirmed.
    M. C. Council, of Clyde, and J. R. Stubble-field, of Eastland, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was charged in the court below with abortion. The indictment contained two counts,, one charging the use of a metallic instrument, and the other the giving of drugs and medicine. The court submitted only one count — the one charging the use of a metallic instrument to effect the abortion. The jury found appellant guilty and fixed his punishment at five years’ confinement in the penitentiary.

Appellant asked several special charges, his special charge No. 1 setting forth the law of circumstantial evidence as shown by his bill of exceptions No. 7; but an examination of the facts in evidence satisfy us that no error was committed in refusing this charge and refusing to charge on circumstantial evidence. The prosecuting witness testified fully to the acts and conduct of both the appellant and the physician who was procured by appellant to perform the abortion upon her, and this would take the case out of the rule of circumstantial evidence.

In .his special charge No. 2, as shown by his bill of exceptions No. 8, appellant asked that the jury be charged the law of accomplice testimony, claiming that the prosecutrix was in law an accomplice, and that that phase of the law should be submitted to the jury. The question has been passed upon so frequently in this state that it is no longer an open one. The prosecutrix was not an accomplice. Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Gray y. State, 77 Tex. Cr. R. 221, 178 S. W. 337.

Appellant asked special charge No. 4, which was given by the court, and will be noticed later in this opinion.

Appellant complains by his bill of exceptions No. 1 of the action of the trial court in instructing the entire panel of the jury, prior to calling any cause for trial, -upon certain general phases of procedure and trials. We have examined the authorities cited by appellant’s counsel, and have carefully examined the remarks of the court to the jury, and while we agree with the holdings in the cases cited, we do not find anything in the instant case that was in any wise calculated to prejudice the rights of any person accused of crime whose case might be set for trial during that week.

Appellant’s bill of exceptions No. 2 complains of the action of the trial court in refusing to postpone the trial in order to enable the appellant to obtain the testimony of Dr. Earnest, who was indicted by separate indictment for the same offense. The qualification of the trial court upon this bill shows that both appellant and Dr. Earnest filed statutory affidavits, each asking that the other be tried first, and that in accordance with the law the court had in such case put the one to trial whom he thought best, and that one being the appellant, who had had a trial resulting in a hung jury, and thereafter Dr. Earnest had' been tried, and convicted, and this instant case was the second trial of appellant. As explained by the court we see no injury in the court’s action.

Appellant’s bill of exceptions No. 4 complains of the charge of the trial court on the law of principals; the contention being that same was erroneous because it authorized the jury to find the appellant guilty as a principal if he consulted or advised the doctor who actually performed the abortion to commit same. It is not necessary for one to be present when an offense is actually committed in order to make him a principal. Where a criminal enterprise is launched by the active participation and presence of certain persons, and same moves on to its completion under the visible direction of some and in accordance with the plan of all, and the case be one in which it is impossible for the jury or the court to tell at what stage of its progress the. forbidden thing was actually accomplished, that is, whether in the initial chapter where all who engaged in the criminal enterprise were personally present and participating, or whether at some later stage, then neither the jury nor the appellant could have been benefited by an attempt to disconnect such cpntinuous parts of the whole criminal undertaking by giving a charge as to principals applicable to one part of the same, and accessories as to the other part. In this case no evidence was offered of any abandonment of the criminal accomplishment of what was undertaken and possibly finished in appellant’s presence. The statute forbids the use of any violence or means whatsoever by which an abortion is procured, and the presence of the accused at the moment, or on the occasion of the premature birth of the fetus, is not necessary to make him a principal. Nor is it necessary that he should be present at each one of a series of treatments in one of which, or as ai result of all of which, the destruction of the' life of the embryo is accomplished. In this case the criminal scheme was the appellant’s. He was a married man who had unquestionably been for a long time criminally intimate with the prosecutrix, a young woman of 20. When they both concluded that she was pregnant, he took her to Ranger, in the neighboring county of Eastland, took her to a hotel as his wife, left her there after spending the night with her, and came back and told her he had talked to Dr. Earnest, and took her to Dr. Earnest’s office. There he told the physician who she was and what they were there for, and remained present while this physician used his instruments and other treatment upon the person of the prosecutrix. She remained in Ranger three or four days, visiting the doctor twice a day, and testifies that on the occasion of her second visit he, the doctor, told her that she had had a baby started and that he got it. The next day appellant returned to Ranger to see how the enterprise was progressing, and consulted with her about each successive thing'that was done in connection therewith. At just what precise moment or day the desired result was accomplished is not shown by the record, and probably could not be known. It was shown, however, that appellant wrote to the doctor about the matter later, and also paid him. In this state of case the complaint of the court’s charge on principals, because it authorized the jury to find the defendant guilty as a principal if he counseled or advised the doctor who committed the abortion, is hypercritical. It was not necessary, as stated, for one to be present at each treatment, nor to remain continuously with the other parties to the enterprise, where, as in this case, it is clear that what was done was the result of what in law is denominated a conspiracy. What we have just said applies also to appellant’s bills of exception Nos. 5 and 6.

Appellant’s bill of exceptions No. XI complains because he was not allowed to prove by County Attorney Bean, testifying as a witness, as to whether or not prosecutrix made certain statements contained in a written document purporting to be the examining trial testimony, from which the examination was being had. The trial court sustained objections to these questions, holding that the instrument itself was the best evidence of its contents. There was no error in so holding. The written instrument was later introduced. in evidence by the state.

We think, no error was committed in allowing prosecuting witness to state that on the occasion of one of her treatments for this abortion Dr. Earnest stated to her, not in the presence of the appellant, what amount of money appellant had paid him. The criminal conspiracy had not yet- been fully concluded. She had been sent back on this occasion by the appellant for further treatment at the hands of the physician, and in our view of the case what was said by either the appellant or Dr. Earnest hearing on the mutual object of their agreement before its final termination was admissible as against each.

Bills of exception Nos. 13 and 15 present no reversible error. Drs. Griffin and Rush, who were witnesses for the appellant, testified on cross-examination as to a different method by which an abortion could be accomplished than that charged in the indictment in the instant case. Nothing appears from the bill or record showing that any claim was made to the jury, or by the prosecution, that this abortion was committed in the way testified to by these physicians.

We have carefully examined the evidence in the case, and are of the opinion that the same fully supports the judgment, which is accordingly affirmed. 
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