(dissenting).
I dissent in this case because I think that the trial court erred in failing to sustain the appellant’s motion to quash the indictment. The indictment contained only one count, and the only attempt to allege the means used in the alleged offense was to recite "“an instrument calculated to produce abortion.” The evidence reflects that a rubber tube with a piece of gauze at the end was described and identified by the complaining witness as being used with other material. The state did not allege that the means used were unknown to the grand jury. It is stated in 1 Tex.Jur.2d 171, Sec. 15, that:
“ * * * where the abortion is charged to have been effected by the use of a certain instrument calculated to produce an abortion, it is the better practice for the state to describe the instrument, if known, and if not known, to so allege. In any event if the description of the instrument alleged to have been used is defective, the defect may be cured by an averment in a subsequent count that the name and character of the instrument is unknown to the grand jurors.”
In Mayberry v. State, 271 S.W.2d 635, this court held as follows:
“There is no question but that the accused is entitled to notice in the indictment of the accusation against him, in order that he may prepare his defense thereto. It would have been the better practice, here, for the state to describe the instrument used, if known, and if not known, to so allege.”
In Mayberry, a general verdict was returned and there was no showing that appellant’s guilt depended upon the allegation in the indictment that the abortion was caused by a “certain instrument,” as the case was also submitted to the jury on an allegation that the abortion was caused by the use of drugs. The evidence amply supported a finding that the abortion occurred as much by reason of the use of a drug and medicine as that it was caused by the use of the instrument, and the proof showed that the instrument was used to administer the drug.
The facts in the case at bar are not on a parallel with the facts in the Mayberry case. Here, it is conclusively shown that an abortion had been committed by the use of an instrument. No drugs were used nor involved. The rule, in my judgment, is different in this state in abortion cases involving the use of medicines and drugs than in those abortion cases involving the use of instruments.
The maj ority attempt to distinguish May-berry, supra, with the statement: “ * * * a further description of the drugs or medicine was not necessary.” This statement,, certainly, is not indicative, nor does it even imply, that a further description of the IÑSTRUMENT was not necessary.
I have carefully examined all the holdings of this court and I find that an indictment for abortion, or for an attempt to procure an abortion, need not give the name-*697of the drug or medicine used if it contains an allegation that such drug or medicine was calculated to procure an abortion. This statement is supported by the holdings in Hunter v. State, 81 Tex.Cr.R. 471, 196 S.W. 820, Cave v. State, 33 Tex.Cr.R. 335, 26 S.W. 503, Watson v. State, 9 Tex.App. 237, Reum v. State, 49 Tex.Cr.R. 125, 90 S.W. 1109, and Mayberry v. State, supra.
I also feel that the portions of appellant’s confession which refer to his performance of abortions and the bed he used in the abortions could be considered by the jury as admissions that he had been guilty of engaging in the business of producing abortions, and such statements were reasonably calculated to prejudice his rights with the jury. It is a general rule that the state may not introduce, in developing its case in chief, evidence which has no tendency to prove some material fact in connection with the offense charged but merely tends to show that the accused is a criminal, generally. Roark v. State, 101 Tex.Cr.R. 401, 276 S.W. 242; Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276; and Garcia v. State, 165 Tex.Cr.R. 134, 305 S.W.2d 605.
For the reasons stated, I dissent to the affirmance of this case.