40 S.W. 287 | Tex. Crim. App. | 1897
Appellant was convicted of abortion, and his punishment assessed at confinement in the penitentiary for a term of five years, and prosecutes this appeal. The indictment was in three counts. The first count charged that appellant committed the abortion by the administration to the prosecutrix, Mollie Smith, of a drug and medicine; and the second count charged that appellant committed an abortion upon said prosecutrix by means of forcing into her womb and private parts a certain metallic instrument, calculated to produce abortion, etc.; and the third count charged that appellant committed an abortion upon the prosecutrix by means of inserting into her womb and private parts a certain pen-staff — an instrument calculated to produce abortion. All of said counts charged that the means were used with the consent of the prosecutrix. The court, in his charge to the jury, submitted only the first and third counts, which was tantamount to a dismissal of the second count, to-wit: the court charging an abortion by means of the use of a metallic instrument; that is, it was equivalent to an election on the part of the State to only prosecute on the first and third counts. See, Smith v. State,
The prosecution in this case was in Jack County. The indictment was presented in that county, and alleged that the offense was committed in said county. The proof showed that the means used to procure the abortion and all that was done by appellant was done in Jack County. The proof further shows that the prosecutrix, Mollie Smith, aborted in Montague County. In this state of case, appellant insists that the District Court of Jack County had no jurisdiction of the consummated offense. Appellant urges that, there being no special statute on the subject giving jurisdiction in a case of abortion where the acts were performed or where the abortion took place, it is governed by our general statute on the subject, which is as follows (Art. 246, Code Crim. Proc., 1895): "In all cases, except those enumerated in the previous articles of this chapter, the proper county for the prosecution of the offense is that in which the offense was committed." And he insists that the offense was not committed until the abortion took place; that this was the consummation of the offense; and that it occurred in Montague County; and that Jack County had no jurisdiction. We are referred to a number of cases. All of them are simply to the effect that the prosecution must be in the county where the offense was committed, but none of them are in point or illustrative of this case. It is earnestly insisted that Searcy v. State,
rmed.