Appellant was convicted of accomplice to abortion on Daisy Moore and his punishment assessed at five years in the penitentiary, — the highest prescribed by law.
This is a companion case to that of W.A. Link, who was convicted as principal for procuring the abortion on said girl and affirmed by this court February 18, 1914, reported in73 Tex. Crim. 82, 164 S.W. Rep., 987. Some of the evidence in that case is quoted in the opinion. From it, the character of this case is shown. Daisy Moore *Page 555 did not, in that case, testify as she did in this to what appellant said and did in the way of advising, commanding, encouraging, etc., the abortion so as to show him an accomplice thereto. That evidence would not have been admissible in the Link case. Appellant did not testify in the Link case. He did in this. Appellant's wife testified in the Link case fully what occurred and was said and done by her and by and between her and Dr. Link and others in the way of procuring and producing the abortion. Appellant had his wife testify in this case, but did not have her testify anything about her seeing and trying to induce other doctors to produce the abortion, nor her seeing and what was said and done between her and Link, who with her actually produced the abortion; and, of course, the State could not and did not ask her anything thereabout. We think it unnecessary to make any further detailed statement of this case, or the evidence. As occasion arises, in passing on the different questions, we may make further statement of the evidence necessary or proper to show the questions, discuss and decide them.
In addition to the necessary preliminary and concluding allegations, the indictment is:
"That one W.A. Link and Rachael Fondren, in the County of Tarrant and State aforesaid, on the first day of May," . . . 1913, "did unlawfully make an assault in and upon the person of Daisy Moore, a pregnant woman, the said W.A. Link and Rachael Fondren then and there believing the said Daisy Moore to be pregnant at the time of said assault, and did then and there unlawfully, wilfully and designedly, and with the consent of the said Daisy Moore, and with the intent on the part of them, the said W.A. Link and Rachael Fondren, to procure an abortion on said Daisy Moore, thrust and force into the private parts and womb of the said Daisy Moore, a certain instrument, the name, character, description and substance of said instrument being to the grand jurors unknown, said instrument, in the manner so used, being then and there calculated to produce an abortion upon the said Daisy Moore, and by the said means aforesaid (and by other means to the grand jurors unknown), he, the said W.A. Link, and she, the said Rachael Fondren, did then and there procure an abortion upon the said Daisy Moore and did then and there, thereby, as aforesaid, destroy in the womb of the said Daisy Moore the life of a fetus or embryo which was then and there alive in the womb of the said Daisy Moore, . . . and the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to the said court that one W.E. Fondren, in the County of Parker and the State of Texas, and before the commission of the said offense of abortion, as aforesaid, on the 30th day of April," . . . 1913, "did unlawfully and wilfully advise, command and encourage the said Rachael Fondren to do and commit the said offense of abortion, and did agree with the said Rachael Fondren that he, the said W.E. Fondren, would pay such sum of money as was necessary for the operation in procuring the said abortion upon the said Daisy Moore in Tarrant County, Texas, the said W.E. Fondren not then and there being present *Page 556 in Tarrant County, Texas, at the time and place of the commission of said offense in Tarrant County, Texas. . . ."
Appellant made a motion to quash this indictment on only two grounds, — first, because it does not allege that said Link knew that Daisy Moore was pregnant at the time he is alleged to have thrust and forced into her private parts and womb the instrument described therein; second, because it "is misleading, confusing, contradictory, conflicting and repugnant in its allegations wherein it attempts to charge the means used" in these words: "Thrust and force into the private parts and womb of the said Daisy Moore a certain instrument, the name, character, description and substance of said instrument, being to the grand jurors unknown, said instrument, in the manner so used, being then and there calculated to produce an abortion upon the said Daisy Moore, by the means aforesaid, and by other means, to the grand jurors unknown, he, the said W.A. Link, and she, the said Rachael Fondren, did then and there procure an abortion upon the said Daisy Moore, etc."
After the trial and conviction, he made a motion in arrest of judgment on precisely the same grounds and no other. The court overruled both of these motions. He took bills to the overruling of each. In his motion for new trial he merely complains of the court's overruling each of these motions. In no ether way, and on no other grounds, in the court below, or in this, did appellant attack the validity of the indictment.
Our statute (art. 1071, P.C.), prescribing what is abortion, says: "If any person shall designedly administer to a pregnant woman, or knowingly procure to be administered, with her consent, any drug or medicine, or shall use toward her any violence, or means whatever, externally or internally applied, and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled.
"By the term `abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb, or that a premature birth thereof be caused."
The statute as to accomplices (art. 79, P.C.) is: "An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or, who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or, who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or, who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of same."
Article 85 is: "There may be accomplices to all offenses, except manslaughter and negligent homicide."
In addition, and as contradistinguished from principal, as to the offense of abortion: Article 1072, Penal Code, is: "Any person who *Page 557 furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice."
We deem it unnecessary to discuss appellant's grounds attacking said indictment, for either a careful or casual reading of it and the statute shows that it substantially and fully alleges the offense in the terms of the statute which is all that is necessary. The statute does not require, and it was unnecessary for it to allege, that said Link knew Daisy Moore was pregnant when he forced the instrument into her private parts and womb. Wherein or how the indictment is misleading, confusing, contradictory, conflicting or repugnant, is in no way pointed out and neither is true. Appellant, in the brief of his able attorneys, cites no authorities, nor does he undertake by argument, illustration or otherwise to sustain his contentions and show that either of them are in any way correct.
The indictment, as shown on its face, was not drawn nor attempted to be drawn charging appellant as an accomplice under said article 1072, but was drawn and intended to be drawn, strictly under said article 79, based, of course, on article 1071, as to abortion.
Appellant in no way in this or the lower court, claimed that article 79, above quoted, prescribing who are accomplices to all offenses, did not apply and could not be applied to the offense of abortion. By making no such claim and attacking the indictment on the only grounds he did, he and his attorneys seem to concede that article 79 would and did apply. However, it is claimed in this case now that article 1072 alone applies to the offense of accomplice to abortion and that because of that article, article 79 is excluded and that an indictment for accomplice to abortion can not be based on article 79. A brief discussion and decision of this question is, therefore, proper.
At common law there were accessories before and accessoriesafter the fact. Under our law accessory before the fact is an accomplice. In other words, we have no technical accessory before the fact denominated as such, but accessories before the fact are accomplices. Abortion was an offense at common law. In all our States abortion is an offense. Where there is no code so enacting then at common law, and in all others it is made an offense by statute, following the common law.
In 1 Standard Ency. of Proc., p. 126, it is said: "An accessory before the fact is one who, though absent at the time of the commission of a crime, procures, aids, counsels, or commands another to commit it."
In 1 A. E. Ency. of Law (2nd ed.), p. 187 et seq., in treating the subject, "abortion," it is said, page 191: "In most of the States of the Union a woman who commits an abortion on herself is guilty of no crime, she being regarded rather as the victim than the perpetrator of the crime." That is our law, too. Said authority continues: "Under the statutes anyone who unlawfully or maliciously supplies or administers to a pregnant woman or causes or procures to be taken by her any drug, poison, substance, or noxious thing, or unlawfully uses or causes to be used any instrument or other means whatsoever, with intent to procure or cause an abortion, is a principal. Said authority *Page 558 continuing (p. 192) says: "Any person who aids, abets or assists a woman or any other person to procure an abortion is an accessory or accomplice."
In 1 Ency. of Plead. Prac., p. 66, it is said: "An accessorybefore the fact is he that, being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites or abets another to commit it." To the same effect is 1 Ency. of Law Prac., pp. 252-253: "An accessory before the fact is one who counsels, commands or procures another to commit the crime, not being himself actively or constructively present at the time of its commission." To the same effect is every other text-book and authority on the subject.
Coming back now to our abortion statute, quoted above. By it, it is enacted that any person who shall use any external or internal violence towards a pregnant woman and thereby destroy in her womb the life of the fetus or embryo or cause a premature birth thereof, is guilty of abortion. All persons are principals who are guilty of acting together in the commission of an offense. (P.C., art. 74.) When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, are principals. (P.C., art. 75.)
In morals, as in law, so held by all authorities, anyone who before a crime is committed, even though not present when committed, advises, commands, or encourages another to commit the crime, is just as criminal as he who actually commits it. As to the crime of abortion it is most usually, if not always the case, that the crime itself is committed by one person under the advice, command or encouragement of another. Is it possible that our Legislature intended that one who thus advised, commanded or encouraged another to commit abortion should be guiltless and not punished when every other State in this country holds such one criminal and punishes him? It is unthinkable that our Legislature so intended, and we would not be justified in so holding, unless such intention was so clearly expressed in the legislation as to practically exclude any other construction. Our codes and civil statutes require that they shall be liberally construed so as to attain the objects intended by the Legislature: "The prevention, suppression and punishment of crime." And that "in all interpretations the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy."
When our Penal Code was originally prepared, adopted and enacted in 1856, and in every revision thereof since then, it contained said articles 79, 85 and 1072, in exactly the same language as they now are. Of course, in the original code and each subdivision thereof since, some or all of them, may have had different numbers. So that, without doubt and without question, each of said articles were enacted at the same time originally, and each re-enacted in every revision since then, and are, in effect and in fact, the same Act by the same Legislature each time. Neither can there be any doubt or question but that the first ninety-one *Page 559 articles of our code, as they are now numbered, — and they contain the same provisions as in every enactment and revision thereof, though some of them differently numbered, — were intended to apply and do apply to every offense therein and thereafter prescribed by the code, unless specifically excepted by one or more of them respectively, the same as if following each offense specifically. Especially is this true of articles 79 et seq. with reference to accomplice to offenses. It has been expressly held by this court that the articles of our code on accomplices prescribe no offense whatever and that no crime is named or called accomplice. Judge Hurt in Carlisle v. State,31 Tex. Crim. 537, said: "We have no definition of a crime named or called accomplice, but we are informed by our code what acts and things make a person doing them an accomplice to all felonies to which there can be an accomplice." Judge Henderson, in Moore v. State, 37 Tex.Crim. Rep., said: "It is a well settled rule of law that there can be no accomplice without a principal. . . . We can not have an offense that could be committed by an accomplice without a principal." In fact, our statutes themselves conclusively show this without any judge or court ever having said so. All offenses in our code are prescribed by the articles thereof subsequent to the first ninety-one articles. Our whole Penal Code was intended to be and is a complete law prescribing and denouncing every offense. As to offenses it is intended to be and is complete within itself up to the time of its enactment.
We do not intend and it is unnecessary, to call attention to all of the rules for the interpretation of statutes. We merely call attention to some of them which we think applicable to this question.
Said articles 79, 85 and 1072, being enacted at the same time in one Act in the adoption of our first code in 1856, and containing precisely the same language in each and every other revision and adoption of our code, unquestionably are what are denominated a statute or statutes enacted in pari materia and must be so interpreted.
Mr. Bishop, in his work on Statutory Crimes, 3rd ed., sec. 82, in grouping the rules for the interpretation of such statutes, says: "The statute should, if possible, be construed in a way to render each separate provision harmonious with its general intent. . . . The construction should be such as will not leave the entire enactment without effect. Nor should an interpretation be admitted, if avoidable, which will render one clause repugnant to another, but all should stand. . . . The court will endeavor to so shape the meaning of a statute that it can neither be eluded nor its purposes defeated. All its parts, and all acts, `though made at different times or even expired' or repealed, and the entire system of laws, and the common law, touching the same matter, must be taken together; and, if one part standing by itself is obscure, it may be aided by another which is clear."
"When a statute is made in addition to another on the same subject, without repealing any part of it, both are to be considered together." (Sec. 86.)
Now, in order to determine what was the intent of the Legislature *Page 560 and the effect of these respective articles on accomplice, we will restate them so far as they apply to this offense and to the indictment and evidence in this case.
An accomplice is one who is not present at the commission of an offense, but who before the act is done advises, commands, or encourages another to commit the offense. (Art. 79.) There may be accomplices to all offenses except manslaughter and negligent homicide. (Art. 85.) Any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accomplice. (Art. 1072.) Then what do we have? If the Legislature had intended by this law that no one who advised, commanded or encouraged another to commit the offense of abortion was not included by article 79, it would unquestionably have excepted that offense from that article, for in article 85 it did except manslaughter and negligent homicide. Instead of so intending it not only intended that any person who advised, commanded, or encouraged another to commit that offense should be guilty as an accomplice, but that also, in addition, as stated by article 1072, any person who furnished the means for procuring an abortion, knowing the purpose intended, should be guilty as an accomplice. It was not intended and could not have been intended by the Legislature that only the person who furnished the means for procuring the abortion should be guilty as an accomplice and not he also, who advised, commanded, or encouraged another to commit the offense. Neither is said article 1072 in conflict with the last subdivision of article 79 which provides that he is an accomplice who prepares arms, or aid of any kind prior to the commission of an offense for the purpose of assisting the principal in the execution of the same, but instead, is an enlargement, and intended to be so, of the latter part of said article 79. If the rule, expressio unius est exclusio alterius, applies at all as to this statute, it unquestionably is in favor of the construction we give to the several articles, instead of the reverse, for as the statute expressly excepts manslaughter and negligent homicide from the application of article 79, if the Legislature had intended to except abortion it unquestionably would have said so and included that in article 85. So that, as we see it, he who is an accomplice under article 1072 does not exclude, and can not be so held to exclude he who is also an accomplice under article 79. This question seems never to have been contended for before in any case decided by this court, for there is no decision or discussion of this question in any case of this court that we have been able to find after a most diligent search.
Appellant made a motion to dismiss this case, claiming that Parker and not Tarrant County had jurisdiction thereof. This has been expressly and repeatedly held against him. Carlisle v. State, 31 Tex.Crim. Rep.; Dent v. State, 43 Tex. Crim. 126; Sikes v. State, 28 S.W. Rep., 688.
During the trial, while the prosecuting witness, Daisy Moore, was on the stand and had testified on direct examination and was being crossed by appellant, one of the jurors said, "You have asked that question a *Page 561 hundred times." The defendant's attorney stated, "I will endeavor to make it clear," and the juror replied, "It is plain enough for me." Thereupon appellant made a motion requesting permission to withdraw his announcement of ready for trial and continue the case, because, he claimed, said action and language by the juror showed such prejudice against appellant by him that he could not properly sit as a juror in the case. The court overruled appellant's motion and, in approving his bill, stated: "Counsel for the defendant had, upon cross-examination of the prosecuting witness, asked the witness over and over again to detail the exact places, dates and lapses of time between the same upon which her stepfather and author of her shame and disgrace had had sexual intercourse with her. The witness was hysterical and the repeated questions served to increase her suffering and hysteria. The court has no word of criticism because of counsel's manner of interrogating the witness, he acted only as any other might have done under such trying circumstances; but it was very apparent to the court that counsel's repeated grillings made the entire jury restless, and so much so, that watching them closely the court became aware of the fact that the jury had tired of the reiteration and the manifest suffering brought upon the witness by being forced to repeat and go into details relative to the acts of sexual intercourse between her and her stepfather that resulted in her downfall. There was nothing the court could do without risking the effect or probable effect upon the jury by stopping counsel. This occurrence and the discussion by counsel for defendant relative to whether the jury could hear and understand the witness brought forth the statement from the juror to which the bill is addressed. The court saw nothing in the juror's manner to indicate that the juror was inflamed, excited or unwilling to give the defendant a fair trial. It was such as would arouse the natural indignation of any decent citizen, and the State had made out a prima facie case." This shows no error.
Appellant introduced his wife, who testified in his behalf. He asked her no questions and she testified nothing about the operation on her daughter Daisy which produced an abortion. When appellant's attorneys got through with her direct examination, she was turned over to the State to cross. The county attorney stated to her: "They have not questioned you anything about this operation, and for that reason we will not do it — is the reason we can not do it." The appellant objected to this remark of the county attorney and requested the court to instruct the jury to disregard it. The court promptly did so, telling the jury: "You will not consider for any purpose this preliminary statement made by Mr. Wilson of counsel for the State to the witness for any purpose whatever." We see no reason whatever why the county attorney could not or should not have made said statement to Mrs. Fondren. He merely stated what was the law applicable. Besides, the jury knew appellant had not brought out anything on that subject by Mrs. Fondren. It has uniformly been held by this court that the prosecuting attorneys may comment on the failure of a defendant to *Page 562 produce his wife as a witness or upon any omissions in her testimony if she testifies. For some of the cases see section 61, Branch's Crim. Law.
While Mrs. Fondren, appellant's wife, was on the stand she testified all about appellant's arrest it seems for both this offense and for the offense of incest with his stepdaughter, said Daisy Moore. In his direct examination he also testified about the same matters. It was, therefore, no error for the county attorney to ask him in cross-examination about the same thing.
The prosecuting witness, Daisy Moore, appellant's stepdaughter, upon whom the abortion was produced, was, of course, a very material witness for the State and had testified fully in the case. She testified that appellant had repeatedly had sexual intercourse with her and had impregnated her and was the author of her condition when the abortion was performed upon her. She also testified that no other man, at any time, had had sexual intercourse with her than appellant. Appellant denied all this and in various ways attacked the girl's chastity, both in his own and other testimony. His wife testified that her daughter, Daisy, told her at the time she told her of her pregnancy that someone other than appellant was the cause thereof and that she had had sexual intercourse with several others. She and he also further testified and had other members of their family to testify of the girl's staying out with boys very late at night and thereby intended to attack, and did in all these matters attack, the girl's reputation for chastity. The girl denied that she so stated to her mother, but, on the contrary, swore that she told her mother that no other had had sexual intercourse with her, other than appellant, who was the author of her ruin. Under such circumstances there can be no question but that the State had the right to prove, not only by appellant himself, but by several others, as the State did, that her general reputation for chastity was good. It is true appellant introduced no witness who qualified and swore that her general reputation in this respect was bad. Unquestionably, however, the appellant contended, as this record shows, and introduced witnesses to show, and their testimony tended to show, that the girl, Daisy, was guilty of numerous illicit acts of intercourse with several other persons, and that her conduct, — being out with them late at night repeatedly, — tended to show such acts. There can be no more forcible way of attacking the virtue of a girl than by showing or attempting to show specific acts of sexual intercourse. It is much more effective than general reputation on the subject. The principles announced and held by this court in Bullock v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 196, and cases there cited, are that where character or reputation for any given trait is attacked by showing specific acts, then the other side has the right to show the general reputation of the party in that respect.
Said witness Daisy Moore had a married sister named Pansy Kirby, who with her husband, George Kirby, resided in Fort Worth. Appellant and his wife and family, including Daisy, lived in the country in Parker County. According to Daisy's testimony, after her condition of pregnancy became known to her mother, and when she was several *Page 563 months advanced, appellant knowing all about it and knowing that he alone was the author of her condition, and after he ineffectually tried various medicines to produce an abortion, in her language, "after that would not bring it on he (appellant) said there could not anything be done only for me to come to Fort Worth and be operated on," and her mother prepared to take her to Fort Worth for that purpose under the direction and advice of appellant. She further testified that her mother said to her just before going, "Your Pa says nothing can be done only to take you to Fort Worth, and I will have to take you to Fort Worth and he won't take you, and I will have to take you to be operated on; it would be found out if he were to take you, and I will have to take you; that, my father said, was the only thing to be done, was to take me to Fort Worth and be operated on." She further shows that appellant did take her and her mother to Weatherford to take the train for Fort Worth for the operation, and she further testified that on the way from their home to Weatherford, appellant said: "Rachael (Mrs. Fondren), go until you get the operation performed, just check on the Piester Bank for it, and I could not write the check, I do not know how much it will take, and I will pay for any amount it takes to get it done, and get it done as cheap as you can, of course, and I will pay for whatever it takes; John Wiggins will cash it, and sign it up and send it in and he will cash it." Both the Kirbys as well as Daisy were very important witnesses for the State and gave very material testimony against appellant tending to show and showing, with other testimony, his guilt. The appellant denied having any illicit intercourse with Daisy and denied any knowledge of her condition until after she had been operated on and an abortion produced on her, and he claimed that the whole of the testimony implicating him in the matter by Daisy Moore was false and a frame-up, and that that of Mr. and Mrs. Kirby was false and a frame-up, and that the Kirbys were directly responsible for the false testimony of Daisy against him and was because of their hostility to him. He then showed that some seven years before this Kirby had made several threats against him, — by one, that he would get even with appellant if it took him forty years. By another, that he would get even with him some time or another. By another, that he would fix the "God damn son-of-a-bitch (appellant) if it takes me a thousand years, and by God I will catch him napping." That the cause of this hostility, as he claimed, was appellant's opposition to Kirby marrying Daisy's sister Pansy, and that she and he had to run away in order to marry and that she separated from him later, appellant being much opposed to the marriage and to their reconciliation. Appellant himself specifically, in effect, testified that Daisy was put up by the Kirbys to swear the lies on him.
Under such circumstances the court permitted the Kirbys to show their connection with the facts pertaining to the abortion and appellant's connection therewith, and that they advised with Mrs. Kirby's grandfather, who lived at Weatherford, before they would even inform the officers anything about it and that they acted on their grandfather *Page 564 and grandmother's advice in communicating it to the officers. And permitted the officers to show that they procured from Daisy, before she was in communication with the Kirbys, all the facts substantially as she testified on the stand. In other words, the court permitted the State to show by the various witnesses that appellant's contention that the whole testimony of Daisy and the Kirbys was not fabricated and that the Kirbys did not induce Daisy to swear as she did, and that they did not even communicate the facts to the officers until they had advised with their grandfather and grandmother, and then did so only upon their suggestion and their advice. Under the circumstances, in our opinion, all this testimony was admissible for the purposes for which it was admitted and the court, by his charge, properly restricted the consideration thereof by the jury to the proper legitimate purposes for which it was introduced.
Appellant has another bill by which it is shown that while Mrs. Pansy Kirby, a State's witness, was on the stand, under direct examination, she testified that she was George Kirby's wife; that her maiden name was Pansy Moore; that she was a sister of Daisy; that appellant was her stepfather. Then this occurred:
"Mr. Wilson (of counsel for the State): Q. State whether or not the defendant undertook to treat you in the same way while you were at home? Mr. Baskin (of counsel for defendant): We object to that upon the ground — The witness: A. Yes, sir. Mr. Baskin: — it is immaterial in this case, and highly prejudicial matter, and one calculated to prejudice the rights of the defendant. The court: I sustain the objection. Gentlemen of the jury, you will not consider the questions just propounded by Mr. Wilson, nor the witness' answer thereto, for any purpose whatever. Mr. Wilson: The only reason we could offer it would be to explain his staying with Pansy Moore, instead of his own daughter, after this occurred, learning, as he stated, that Pansy Moore was present down here and heard what happened between Mrs. Fondren and the doctor; that is the only connection it would have, there is some doubt about it. The court: Yes, sir. Mr. Baskin: We understand that the attorney admits there is some doubt about it, about that testimony, he had that in his mind. I believe it is a matter of such highly prejudicial character we will even reserve an exception as to the proceedings which you or I could not control. The court: All right. Mr. Baskin: Note our exception."
This is in substance the whole of the bill, except the winding up of it that the bill was allowed, approved, etc. The State objects to the consideration of this bill, claiming that it is wholly insufficient to authorize or permit this court to consider it. The State is correct in its contention. The State also, in this connection and regarding this bill, contends, and the record shows, that the witness Daisy Moore not only testified to appellant's repeatedly having sexual intercourse with her, but also that he whipped her on several occasions and also that later he was more partial to her than any of his, or his wife's children, making her presents of various articles of jewelry, clothing, etc. The State *Page 565 contends that the jury could have as well understood that it was seeking to show by Pansy Kirby that appellant did, or did not treat her as he did Daisy as to whipping her and as to being partial to her and giving her presents of various articles. So that, in no event, as we see it, whether the bill is considered or not, even if it had been intended by the State to show that appellant had or had attempted to have sexual intercourse with Pansy, as he had with Daisy, does the bill show any reversible error. The court, as shown above, promptly, when the objection was made, sustained appellant's objection to the testimony and at his request pointedly instructed them not to consider the question or answer thereto for any purpose whatever. No such injury by this could have occurred to appellant as to justify the reversal of this case.
The only other bill appellant has is a complaint to a very brief statement in the county attorney's closing argument for the State. The bill does not show when the objection was made, nor does it show that the court did not at once stop the county attorney and reprimand him, but it does show that the court gave a special written charge, telling the jury that said argument by the county attorney was improper and could not be considered by them for any purpose. We think the argument complained of was a proper one under the circumstances of this case by the county attorney, but whether it was or not, no injury could or did occur to appellant because the jury were told not to consider it for any purpose.
We think the evidence does not show or tend to show that Mrs. Pansy Kirby was in any way an accomplice to the abortion produced on Daisy, but whether she was or not, the court gave appellant's specially requested charge on the subject submitting that question to the jury and telling them if she was an accomplice that she had to be corroborated as required by law and the charge. The court, having covered the matter in giving one of appellant's charges on the subject, it was unnecessary and improper to give any of his others on the same subject.
Appellant complains that some of his special charges should have been given. We have considered them all and in our opinion none of them should have been given. Wherever proper they were covered substantially by the court's charge. All of his charges that Daisy was an accomplice were correctly refused. She was not an accomplice. Watson v. State, 9 Texas Crim. App., 237; Willingham v. State, 33 Tex.Crim. Rep.; Miller v. State,37 Tex. Crim. 575; Hunter v. State, 38 Tex.Crim. Rep.. It is needless to cite other cases or authorities.
We think there was no evidence properly raising any issue that the appellant was an accessory. Under the statute (P.C., art. 87), he could not have been an accessory. So that appellant's charge on that subject was properly refused.
It is the settled law of this State that when anyone is on trial as an accomplice to a given offense, that the State must prove the guilt of the principal and that all evidence to establish that is admissible on the trial, the same as if the principal himself was on trial. Otherwise much *Page 566 of such testimony could not be admitted on the trial of the accused when charged as an accomplice. In this case, there was much of such testimony admissible and admitted. It is always proper in such cases for the court, in his charge, to, in effect, tell the jury that such testimony was admissible for the purpose of showing the guilt of the principal and that such testimony could be considered for that purpose only and not to show appellant's guilt as an accomplice. In the trial of this case these well established principles of law were applicable and the court gave the correct and proper charge on the subject. Therefore, appellant's objection to the court's charge on that subject in this case is not well taken.
The record in this case is quite voluminous. We have read and studied it all diligently and carefully. The evidence on some of the material questions was conflicting. This was a question for the jury. There is no question but that the evidence is ample to show appellant's guilt and the jury believed it. The State's testimony shows a most horrible crime committed by appellant. His testimony and his side of it if believed by the jury would have justified his acquittal. Such being the case, the jury being the exclusive judges of the facts and the credibility of the witnesses, this court can not rightfully disturb the verdict. There is no reversible error presented and the judgment will, therefore, be affirmed.
Affirmed.