BEARD v. STATE

(88 South. 193) BEARD v. STATE. (6 Div. 669.) (Court of Appeals of Alabama. June 1, 1920. Rehearing Denied June 22, 1920.) Indictment and Information &wkey;>190 — Under Indictment for an Offense' Conviction MAY BE FOR ATTEMPT. By express provision of Code 1907, § 6311, on trial of an indictment for any offense, the jury, though finding defendant not guilty of the offense charged, may, if the evidence warrants it, find him guilty of an attempt to commit such offense; so that a charge, to acquit in case of doubt whether the treatment produced the abortion charged in the indictment, is properly refused. <5te»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Cullman County; O. Kyle, Judge. Marion Beard was' convicted of an attempt to produce an abortion, and appeals. Affirmed. Petition for certiorari dismissed 204 Ala. 697, 86 South. 926. F. E. St. John, of Cullman, for appellant. The charge requested by defendant should have been given. 117 Ala. 133, 23 South. 144. The defendant could not be said to be an aider or abettor under the evidence. 59 Ala. 106; 90 Ala. 583, 8 South. 812. The affirmative charge should therefore have been given for the defendant. J. Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. No brief reached the Reporter. [MAJORITY — MERRITT, J.] MERRITT, J. 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. Specgle to go to Dr. Gossey 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. C'ossey and Dr. Hays, gave her produced the miscarriage or abortion, and if after a consideration of all the evidence in this case yon 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: i “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 attemot 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 he 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.