Gray v. State

Before the original opinion was written I carefully read and thoroughly studied the evidence and record. I then reached the conclusion that appellant's contention in the trial court was, that she not only did not know that Mrs. Moore was pregnant when she performed the acts she did upon her, but also "that the acts she performed upon her were solely and simply for the innocent purpose and intention of bringing on the suppressed menses of Mrs. Moore and under the belief that she was not pregnant."

In considering the motions for rehearing, I have again more carefully read and thoroughly studied the evidence and record, if that can be, than when I wrote the original opinion, and I am confirmed and strengthened in my original opinion. My brethren, however, have reached the other conclusion. If they are right, of course the judgment should be reversed.

I do not propose to give any detailed statement of the evidence, — only sufficient of it to show how I reached the conclusion I did and why I adhere to it.

Mrs. Sadie Moore was the State's first witness. The substance of her testimony on direct examination was that on March 12, 1913, she had been married about three months. "It had been just a short while since my menstrual period, — about two weeks I reckon." That she knew appellant and went to her home and saw her there said date; that Mrs. Rob Moore (another Mrs. Moore) went out there with her. "I told her (appellant) what I wanted done; I told her I wanted an abortion. . . . She asked me how far I was and I told her about two weeks or ten days or something like that. There was something said about pay, — defendant said she charged $10 and I paid her. I then lay down on a couch and defendant used a catheter, a little rubber tube, and she inserted it into my womb. She put some cotton around the catheter. She left it in there. . . . The catheter remained inserted in my womb from about 11 o'clock one day until about 11 o'clock the next day, then I removed both the catheter and the cotton. . . . After the removal of the catheter and cotton I was sick; it was successful — my menstrual period I guess came from the womb after the removal of the catheter and cotton. There was also something else came from my womb, but not very much of anything — it looked like a little *Page 234

old white substance, just very small, about the size of a dime. After this about two or three weeks I consulted with a physician — Dr. Nance; he came to my house and made an examination of my womb and put an ice bag on my side. I just wanted to have the doctor come and see me and tell him what I had done; I just kind of felt kind of bad and I thought there might be some inflammation there or something."

Appellant then took her on cross-examination and had her testify that she was nineteen years of age when she married and never had been married before; that she had never given birth to a child, was ignorant of all such matters when she went to see appellant and had never before been pregnant and knew very little about matters of that kind. "My regular menstrual period should have arrived along some time about the first of March and my period not arriving about that time, I became uneasy as to my condition. There was nothing in my condition that aroused my apprehension except the fact that I had missed my monthly period and I was not accustomed to missing it." That she first discussed her condition with said Mrs. Rob Moore, who was an older and longer married woman than she was, and told her about missing her menstrual period and the time; that Mrs. Rob Moore told her she could go out to appellant, and she went there mainly to see what her condition was, and told appellant the time she had missed her menses and that "I was worried about my menstruation, and asked her if she could do anything to cause the resumption of my menstruation or cause me to `come 'round.' . . . She asked me how long I had passed my period and I told her all I knew about my condition was that I had missed my period. She told me that she would not make an examination of me or try to bring on my menstruation unless my husband requested her to do it." She said that she then phoned to her husband and he told her he would leave it with her; that defendant did not send for her but she voluntarily went to get the help of defendant to relieve her of the situation that was embarrassing her. "When I talked to defendant about this and after we had called up my husband, it seems to me she said something about my waiting until the next month to see if my period would not come around without doing anything." That she was very nervous and crying at the time and told defendant that if she was going to have it done she would rather have it done then. She further said that after the catheter was inserted in her womb and her womb packed with cotton and after it remained there about twenty-four hours it "produced the flow — more than usual." Appellant further had her testify: "At the time I went out to see defendant I thought I was pregnant but I did not know; I do not suppose that I could swear that I was; that I was absolutely certain about the matter. but I thought so then and still think I was."

On redirect examination she testified that she was living with her husband since she married him and that the ordinary relations between man and wife existed between them, and during the time within forty days preceding the time she discovered that her menstruation had ceased had had sexual intercourse with her husband. *Page 235

On recross-examination appellant had her testify that she phoned Mrs. Rob Moore the day before March 12th and told her she thought she was pregnant. She said, "Mrs. Moore might have told me in this phone conversation that it was not unusual for a lady to go by her menstrual period," but she did not remember that she did; didn't remember telling her that she didn't know whether she was pregnant or not.

The next State's witness was said Mrs. Rob Moore. On direct examination she said that on said occasion, March 12, 1913, she went with Mrs. Sadie Moore to appellant's house and heard the conversation between appellant and Mrs. Sadie Moore; that Mrs. Sadie Moore wanted Mrs. Gray to examine her and she refused, and Mrs. Sadie Moore began to cry and beg her to, and Mrs. Gray said she would if Mrs. Moore would phone her husband; Mrs. Moore phoned her husband, and he was perfectly willing to go ahead, and then Mrs. Gray said she would. The horse hitched to the buggy in which these two ladies went to appellant's got loose and Mrs. Rob Moore said she went to catch the horse and did not see what appellant did to Mrs. Sadie Moore; that when she returned from catching the horse everything was over and Mrs. Sadie Moore was ready to go; that she knew that Mrs. Sadie Moore took some money with her, and thinks she paid defendant $10; that she thought Mrs. Sadie Moore was going to be sick and went over to Mrs. Sadie Moore's the next day to help her get dinner, found that she was up and just as cheerful as she had ever seen her.

On cross-examination appellant had Mrs. Rob Moore to tell that the day before, March 12th, Mrs. Sadie Moore told her she had passed her period some eight or nine days and that she asked her, the witness, to go out with her to appellant's to find out whether she was pregnant or not. She said, "I do not remember whether she just said it in that way or not, but she wanted to be examined. Mrs. Moore talked to me like she thought she was pregnant, and I tried to convince her that she was not, but she thought she was because she was so young and inexperienced; she just said she had passed her time eight or nine days and that was the only reason she thought she was pregnant. I explained to her that missing her period was nothing uncommon." That when she went over the next day to help Mrs. Sadie Moore with her dinner, she said: "It seems she said something to me about having menstruated but she said nothing about having aborted or delivered a child. . . . Just stated that her menstruation had come around all right and that she was all right; she never told me that there was anything unusual about the menstruation coming around or any unusual discharges." These two witnesses were the only ones other than appellant herself by whom the State could prove its case as to the immediate facts thereof.

I think the examination by the State and the direct testimony of both of these witnesses was for the sole purpose of showing that Mrs. Sadie Moore was pregnant and that the acts performed upon her by appellant were performed with the knowledge of that fact and with *Page 236

no other intention than to produce an abortion. On the other hand, I think the cross-examination of both of these witnesses was not only for the purpose of attempting to show that Mrs. Moore was not pregnant, but especially to show that if she was, that she, appellant, did not know or believe it, for she had Mrs. Moore to testify that she herself, Mrs. Moore, did not know, but simply believed or thought she was pregnant, and had the other Mrs. Moore to testify that she tried to convince Mrs. Sadie Moore that she was not pregnant, but simply that her menses was suppressed for a few days, which was not an unusual, but simply an ordinary condition of married women. And that appellant performed the act she did, not to produce an abortion, but simply and solely for the innocent purpose and intention of bringing on her suppressed menses. From the course of the whole cross-examination of these two witnesses to my mind, it is the same as if the appellant had said to the trial court and jury: "I did not know that Mrs. Sadie Moore was pregnant, — I did not believe she was. What I did to her was with no intention or purpose to bring on an abortion, but was simply and solely to relieve the lady of her distress and bring on her suppressed menses; that her menses were not suppressed because of pregnancy but from some other cause, which was not unusual in women." This being the case, I believe the testimony of the other witnesses showing and tending to show that she had produced abortions on other women, both before and after, was clearly admissible.

I think there can be no doubt, not only that appellant made this contention and showed it both directly and by implication from her cross-examination of these witnesses, but that she could make it appear more or less plausible, for there can be no doubt and is none, to my mind, that if Mrs. Moore had not been pregnant that what appellant did to her would unquestionably have brought on her suppressed menses whatever the cause other than pregnancy. In other words, here was a woman with delayed or suppressed menses. What appellant did to her would bring on her suppressed menses, whether caused by pregnancy or some other cause. Then unquestionably what appellant did was an equivocal act. The State contended that the act was performed to bring on an abortion and with that intent only; the appellant contended that that was not true, but that what she did was done for the purpose of bringing on suppressed or delayed menses and with that intent and for that purpose only. To bring on her menses if not pregnant was not a crime but a commendable and innocent act. Hence, the application of the rule that testimony of her like acts upon other women showing that her intention was to bring on an abortion and not innocently bring on suppressed menses, was clearly admissible.

I think the judgment should be affirmed, — not reversed. *Page 237