The affidavit of the trial judge shows the bill of exceptions was filed within the time provided by law, and the motion to strike the bill of exceptions is overruled.
The defendant was convicted under an indictment containing two counts; the first charging that he was guilty of an abortion, and the second charging that he aided, abetted, or advised in procuring an abortion. The following written charge was refused to the defendant:
"Even though the defendant may have advised the witness Mrs. Speegle to go to Dr. Cossey to have an abortion produced, and gave her $25 to pay for the operation, still the defendant would not be guilty in this case unless the treatment that Dr. Cossey and Dr. Hays, gave her produced the miscarriage or abortion, and if after a consideration of all the evidence in this case you have a reasonable doubt as to whether the treatment of the doctors produced the abortion, you must find the defendant not guilty."
There was no error in the refusal of this charge. Section 6311 of the Code of 1907 provides:
"Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt."
Under this section, if the evidence warranted it, it was permissible to convict the defendant of an attempt to procure an abortion, and the giving of the written charge as asked for would have meant the acquittal of the defendant in the face of this statute.
This much may also be said of the refusal of the court to given the general affirmative charge requested in writing by the defendant.
There is no error in the record, and the case must be affirmed.
Affirmed.