
    SHAW v. STATE.
    (No. 3061.)
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    Rehearing Denied April 22, 1914.)
    1. CRIMINAL Law (§ 556)—Written Statement-Admission of Part — Exculpatory Part—Disproof.
    Where, in a prosecution for abortion, the state offered a part of defendant’s statement introduced before the grand jury, in which she' stated that prosecutrix came to her house with R.; that defendant pushed her finger up in prosecutrix, and pushed up her womb; that R. stayed on the porch while she did that; that she did not know R., and had never seen the girl before; that she pushed her womb up as far as she could, but gave her no medicine— such testimony was not exculpatory so as to require the state to disprove the same, that the jury might not be required to accept it as true.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 918, 1258; Dec. Dig. § 556.]
    2. Abortion (§ 11)—Evidence—Identifica-tion.
    Where, in a prosecution for abortion, pros-ecutrix did not identify defendant as the woman to whom she was -carried, but did testify that R. carried her to a woman named Kate or Kit Shaw, which was the name of defendant, who admitted that R. brought prosecutrix to see her, that was sufficient identification to justify the admission of prosecutrix’s testimony.
    [Ed. Note.—For other cases, see Abortion, Cent. Dig'. § 22; Dec. Dig. § 11.]
    3. Abortion (§ 9)—Evidence.
    In a prosecution for abortion, evidence of prosecutrix that R., who took her to defendant, and who made the arrangements to have the operation performed, was the author of her ruin and the father of her child, was admissible.
    [Ed. Note.—For other cases, see Abortion, Cent. Dig. §§ 17-20; Dec. Dig. § 9.]
    4. Criminal Law (§ 661)—Evidence—Duty to Introduce Entire Statement.
    The state is not required to introduce all of defendant’s statement'or testimony introduced before the grand jury, but may introduce a portion thereof, and leave to defendant the introduction of the remainder.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 758, 1606; Dec. Dig. § 661.]
    5. Criminal Law (§ 507) — Accomplice — Abortion—Victim.
    That prosecutrix willingly submitted to an abortion performed on her did not render her an accomplice.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    6. Abortion (§ 1)—Cause—“Instrument.”
    The fingers of defendant inserted into the privates and womb of a pregnant female constitute an “instrument” within' the Code provisions making it an offense for any person to cause the abortion of a pregnant female by means of an instrument, etc.
    [Ed. Note.—Eor other cases, see Abortion, Gent. Dig. §§ 1-5; Dec. Dig. § 1.
    
    Eor other definitions, see Words and Phrases, vol. 4, pp. 3665-3668.]
    Appeal from District Court, Gollin County; F. E. Wilcox, Special Judge.
    Kate Shaw was convicted of having produced an abortion, and she appeals.
    Affirmed.
    G: B. Smith and Beverly S. Dudley, both of McKinney, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No, Series & Rep’r Indexes ■
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes'
    
   HABPEB, J.

Appellant was charged with, and convicted of having produced, an abortion on one Cassie Gaines.

That Cassie Gaines gave premature birth to a child is proven conclusively. She testified that Sam Bhyon, her cousin, was the father of her child, and that Sam Bhyon carried her at night to the home of a woman in McKinney, and to whom he introduced her as Kate or Kit Shaw; that Bhyon made the arrangements with the woman, and this woman'caused her to lay down, and the woman then inserted her fingers into her privates, manipulating with her fingers for some minutes; that she then was carried home by Bhyon. A few nights later Bhyon again carried the witness to this woman, who carried her into the kitchen, and when she had lain down the woman inserted some kind of an instrument into her private parts, the manipulation of which was very painful and caused her to bleed. The child was aborted a few days after this. On the trial she could not identify appellant as the woman, saying it was at night and dark on both occasions when she was carried to see the woman.

The county attorney then introduced a portion of appellant’s statement or testimony adduced before the grand jury. That portion introduced by the state reads as follows: “Cassie Gaines came to my house with Sam Bhyon. I put my finger up in her and pushed up her womb. Sam Bhyon stayed on the porch while I did this. I did not know Sam Bhyon when he came there, but he told me his name was Sam Bhyon. I had never seen the girl before and did not know her. I pushed her womb up as far as I could. I did not give her any medicine.” This was all of the portion of her testimony introduced by the state, and it is seen there is nothing exculpatory in that portion of the testimony; therefore it was not necessary to charge that the state must disprove the exculpatory part of the testimony, or the jury would take it as true. The exculpatory part of the statement was introduced by defendant, and therefore called for no such charge.

There was no error in admitting the testimony of Cassie Gaines, although she did not identify appellant as the woman to whom she was carried- She testified that Sam Bhyon carried her to a woman named Kate or Kit Shaw. This appellant admits; that Sam Bhyon brought Cassie Gaines to see her. Thus the identification was made sufficient to admit the testimony of Cassie Gaines.

Neither was there error in permitting her to state that Sam Bhyon, who carried her to appellant and made the arrangements to have the operation performed, was the author of her ruin and the father of her child.

When the state offered only a portion of appellant’s statement or testimony adduced before the grand jury, the defendant objected on the ground that, if the state introduced any portion of it, it should be compelled to introduce all she said on this occasion. There was no error in permitting the state to introduce only such portions of this testimony as it desired; the defendant being permitted to introduce the remainder of it when she offered to do so. It is like the examination of a witness: One can ask the witness such questions and adduce such testimony as he desires; if there are other facts in the breast of the witness, connected with the same, that the opposing counsel desires, he should be, and in this instance was,’ permitted to adduce it.

Because Cassie Gaines willingly submitted to having the operation performed on her, it did not constitute her an accomplice under the law of this state. This has been so often decided we deem it unnecessary to discuss that feature of the case. Wellingham v. State, 33 Tex. Cr. R. 99, 25 S. W. 424; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Watson v. State, 9 Tex. App. 244; Wandell v. State, 25 S. W. 27; Link v. State, 164 S. W. 987, recently decided.

There was • no evidence calling for a charge that if appellant did produce the abortion by her acts, that if she did not use an “instrument” in so doing, she would not be guilty. The fingers inserted into the privates and womb of a female would be an instrument within the meaning of the Code defining this offense. In addition to this, it is shown that on the second visit, in addition to the fingers, an instrument was used by appellant.

The court instructed the jury in defining the offense: “Our statute provides that, if any one shall designedly use toward a pregnant woman any violence internally applied and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years; if it be done without her consent the punishment shall be doubled.” The court in submitting tlie issues to tbe jury did not authorize double punishment, but only that if guilty her punishment be assessed at not less than two nor more than five years in the penitentiary. The jury assessed her punishment at only two years. Under such circumstances, the matter complained .of presents no error.

The judgment is affirmed.  