*1 v. State. Winton L. Welch 1953. 26,330. May 6, Rehearing 7, 1953. Denied October Rehearing for Denied Second Motion 28, 1953. October Supreme Denied Court Writ of Certiorari United February States H. Mar- Bailey, Robert Benavides C. and Mmfin & James tin, Dallas, appellant. for
Henry Wade, Attorney, James District K. Allen and Charles Potts, Attorney, Dallas, George P. S. Assistants District Austin, Blackburn, Attorney, state. State’s WOODLEY, procuring an abor- was convicted for the offense peni- years punishment at two was assessed and his
tion tentiary. *2 finding by a the womb to sustain The state’s was sufficient paste appellant injected jury pregnant aborting of the or in for the a fluid purpose indictment, in the female named paid request, her, in consideration at her $225.00 by appel- produced cash, abortion in fact was in lant’s act. and that an any abort or intent to had denied that he aborted agreed prosecuting denied witness, to do He so. purpose. injected any he for that in substance testimony supported by contention, It and that was his his prob- prosecuting aborted, witnesses, his witness had that the seeing ably by prior her, own, and that some act of her to his testi- He his fied that he to an effort relieve her. services were confined attending her. no consideration received assignments predicated appeal based of error two upon exceptions There are in statement of facts. reserved exception. no formal bills abor- six months after the When was arrested some arresting possession of a bottle tion officersfound and took containing jar paste-like liquid. and its bottle exhibit, contents were admitted in as a state’s over evidence to have that was not shown injected same substance which the claimed was state prosecuting prejudicial, highly irrelevant that it was attempt immaterial, and was an to bolster the witness. arresting exhibit, Prior officer to the admission of the fully having appel- jar in testified found the and substance having clinic, lant’s officeat the it to Dr. Mason taken analyzed. objection testimony. Dr. No was made objection, testified, Mason had of the that the contents also without jar soap composed liquid bottle was contained potassium-iodide per to the extent of .086 cent. appellant, testifying own Thereafter witness his be- as a in jar half, examination, on direct and its contents identified the having prepared office, he come from his and said that having potassium-iodide lubricant, himself for use as a fungus sterilizing growth keep been added as a “to factor from growing soap.” kept testified that He eight at all jar times and that would hold a six or months supply for his use. injury
We see in the admission of the ex- hibit, by appellant, identified as to and its being contents before the from other without sources ob- jection. In Pickett v. p. we said: testified,
“. . the objection, . defendant without to the same complained holdings of in the bill. Under the uniform *3 Court, nullify such objections, would all even had supported.” in fact been State, 105, Rep. See Gaines v. 157 Tex. Cr. 247 S.W. 2d 251, State, 26,155, Rep. Vallee v. 158 Tex. Cr. 256 (2) S. W. remaining
The contention is that the trial court erred refusing improper to a declare mistrial conduct because “the prosecuting attorneys.” “improper The conduct” referred question propounded Davis, relates board- to Mrs. landlady house a it true who was defense “Isn’t (meaning appellant) you that he patients sent abortion there —patients to be aborted?” “No, sir,”
The witness answered trial court sus- tained and instructed the to dis- regard question and answer. complaint question does not relate to the of whether excluded, should have admitted inferring suggesting
conduct of counsel in that aborted others. 759a, V.A.C.C.P., provides
Sec. 2 of informal Art. for exception bills only question or ex- of the admission clusion of is question evidence. The misconduct counsel may appeal by one which bill of ex raised on informal ception Q Gasway reserved in the Aand statement of facts. See Herriage State, v. 942, 946; Rep. 157 Cr. Tex. 248 S.W. 2d Fernandez v. 516; State, 158 Tex. Cr. S.W. v. Rep. 266, 254 2d 1004. The evi- jury accepted version case. state’s find no reversible error. and we verdict dence sustains their judgment affirmed. is FOR REHEARING. ON MOTION Presiding Judge.
GRAVES, a motion for Appellant filed well-considered has question relative raises for the first time herein in allegation indictment and the to proof variance between thereunder. submitted in- under count convicted the second alleged fe- aborted a certain in which it was injecting private her
male means of into womb substance, description physical “a better of which matter and met is unknown.” is Grand Jurors by inject- by showing state ing aborted this woman of a color. The into appellant’s main contention herein it was also substance, physical matter and de- relative to better only scription of Jurors unknown.” Not which is the Grand *4 allege unknown, did was the state such substance grand proved by was the the foreman the that at by time this indictment was it did not know what method found procured. was does show that cer- abortion drugs tain prior and found office medicine were returned, to the indictment time this was better de- scription of which is to the Jurors unknown.” Grand objected matter not sufficient
This was to because of lack of grand part jurors the effort to ascertain what composed of, not was nor to ascertain whether application supposedly cause a of such substance would pregnant body. think abort the female to fetus within We clearly grand jurors did know shown that not at time the indictment was found what caused the abortion or the might constituent of this brown-colored substance causing have used for the abortion. Under circum- stances, properly disposed we think this case of. has been rehearing
The motion for will be overruled. SECOND ON MOTION FOR REHEARING. MORRISON,
Appellant forcefully contends that failed to estab- following allegations lish the in the indictment: (by “1. That the means used which the abortion was com- grand mitted) jurors were to the unknown. diligence by
“2. That exercise reasonable such means could be ascertained.” briefly light
Let us review the facts in the contention. of this abortion was on committed wit- August 25, 1951, forcing by paste” ness “some sort of fluid or operation into her After uterus. she noticed a brown dis- coloration on her dress. is all the information she had or that ever available was prosecution grand jury or the about the substance that bring
was used to about the abortion. February 25, 1952, On appellant’s the officers clinic searched recovered a of a brown fluid. This an- was grand alyzed, jury presumably analysis and the had such against time returned this indictment the accused. grand jury know, did not could not have diligence exercise of prove, limitless been able the two grand jury way substances were the same. The know- components what were the chemical the fluid used bring August 25, about the abortion on Under above, outlined in the in- proper supported proof. second motion for is overruled.