Cave v. State , 33 Tex. Crim. 335 ( 1894 )

HHET, PRESIDING- Judge.

This prosecution is based on article 538, Penal Code, which reads: “If tbe means used shall fail to produce an abortion, tbe .offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result.” Transposed, if tbe accused shall use means to produce abortion, which are calculated to have that effect, be is guilty of an attempt to produce an abortion, though tbe means used shall fail to procure an abortion. Though tbe accused may intend an abortion, and may use means for that purpose, yet, if tbe means actually used were not calculated to have that effect, be is not guilty. Tbe writer has serious doubts as to tbe sufficiency of tbe indictment. I think, under such a statute as this, tbe indictment should name tbe means, or state that they were unknown to tbe grand jury. But such an indictment as this, drawn under tbe statute, was held sufficient in tbe case of Watson v. The State, 9 Texas Criminal Appeals, 237. Did appellant administer drugs, medicines, to Miss Brown with tbe intent and for tbe purpose of procuring an abortion1? If tbe testimony of tbe prosecution and tbe deliberate confession of tbe appellant, made to tbe grand jury, are true, be evidently did. Were tbe medicines, drugs, calculated to have that effect — produce an abortion? If Heifer swore tbe truth — and bis testimony was not questioned by any person —they were.

There was no error in refusing a continuance for the testimony of Cliff Robinson. Appellant settled the fact that he administered medicines to Miss Brown for the purpose of producing an abortion, and the State could have sustained this part of her case, and yet concede the absolute depravity of Miss Brown: The other part of the case was made by the testimony of Dr. Keifer.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.