Conviction for an attempt to produce an abortion on one Livie Brown by administering to her certain drugs and medicines calculated to produce an abortion, etc.
The prosecution is based upon articles 536 and 538, Penal Code. If the abortion is effected — accomplished — the prosecution should be under article 536. If the attempt fails, then prosecute under both.
Counsel for appellant contend that appellant should have been charged as an accomplice under article 537. Not so. If an abortion had in fact been produced, and the accused had furnished the means for producing it, knowing the purpose intended, etc., then he would have been an accomplice to the abortion, and should have been charged as such. Counsel for appellant contend that he (appellant) did not administer the medicine, was not present when it was taken, and was therefore an accomplice, and not a principal as charged in the indictment. That appellant was not present when the medicine was taken is true. But concede this fact — the proposition may or may not be correct. If Miss Brown is guilty, counsel are correct. She, in law, being guilty of no offense (though desiring an abortion and consenting to what was done to produce the same), was the innocent agent of appellant, and he was the principal and was properly prosecuted as such.
Counsel contend that Miss Brown — she consenting to what was done, being a witness — was an accomplice, and the court should have instructed the jury to this effect, etc. This proposition is settled against appellant. Watson v. The State, 9 Texas Crim. App., 237, and authorities there cited.
The testimony is in conflict regarding an important fact. Was the drug administered calomel or salts? If calomel, it was calculated to produce an abortion; if salts, it was not. These propositions are settled by the testimony. Though appellant may have administered a drug for the purpose and with the intent to produce an abortion, yet if it (the drug) was not calculated to have that effect, he would not be guilty. Art. 538. Does the evidence establish with reasonable certainty that calomel was administered? We think it does.
The judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 100