This prosecution is based on article 538, Penal Code, which reads: "If the means used shall fail to produce an abortion, the 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 the accused shall use means to produce abortion, which are calculated to have that effect, he is guilty of an attempt to produce an abortion, though the means used shall fail to procure an abortion. Though the accused may intend an abortion, and may use means for that purpose, yet, if the means actually used were not calculated to have that effect, he is not guilty. The writer has serious doubts as to the sufficiency of the indictment. I think, under such a statute as this, the indictment should name the means, or state that they were unknown to the grand jury. But such an indictment as this, drawn under the statute, was held sufficient in the case of Watson v. The State, 9 Texas Criminal Appeals, 237. Did appellant administer drugs, medicines, to Miss Brown with the intent and for the purpose of procuring an abortion? If the testimony of the prosecution and the deliberate confession of the appellant, made to the grand jury, are true, he evidently did. Were the medicines, drugs, calculated to have that effect — produce an abortion? If Keifer swore the truth — and his testimony was not questioned by any person — they were. *Page 341
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.