We think the court properly refused these charges, and in this kind of a case the question of intent was not a proper issue to be passed upon by the jury. Cordova v. State, 50 Tex. Crim. 353 [ 50 Tex. Crim. 353]; Lewis v. State, 84 Tex. Crim. 499 [ 84 Tex. Crim. 499]; 208 S.W. 576. Appellant further complains of the action of the county attorney in making his closing argument to the jury, wherein he stated that from the bottom of his heart he conscientiously and honestly believed that the appellant was guilty, and the defense as testified to by himself and his mother was false and a fabrication.
Farris v. State, 64 Tex.Crim. R., 144 S.W. 249 (1912). See also Lewis v. State, 84 Tex.Crim. R., 208 S.W. 516 (1919). This is no longer true under the Penal Code of 1974.
Farris v. State, 64 Tex.Crim. R., 144 S.W. 249 (1912). See also Lewis v. State, 84 Tex.Crim. 499, 208 S.W. 516 (1919); Smith v. State, 104 Tex.Crim. 100, 283 S.W. 508 (1926). Appellant urges that this is no longer true under the new Penal Code of 1974.
Appellant contends that the evidence is insufficient to sustain the allegation 'there by the use of said means produce an abortion of the said woman and did then and there thereby destroy the life of the fetus in the womb of the said woman.' He further contends that no evidence was adduced showing that the life of the fetus in the womb was destroyed. It is his contention that in the case at bar, at most, the State made out a case of bringing on a premature birth. He relies upon Tonnahill v. State, 84 Tex.Crim. R., 208 S.W. 516. We agree that Tonnahill is controlling for the facts as stated in that case.
Raven Red Ash Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541. In Tonnahill v. State, 84 Tex. Cr. 517, 208 S.W. 516, 517, the statute under construction defined an abortion as follows: " 'By the term "abortion" is meant that the life of the fetus or embryo shall be destroyed in a woman's womb, or that a premature birth thereof may be caused.' " The court said:
Approval of such procedure is not without precedent. State v. Cary, 124 Kan. 219, 257 P. 719; Barnes v. State, 83 Tex.Cr.R. 207, 202 S.W. 949; Lewis v. State, 84 Tex.Cr.R. 499, 208 S.W. 516; 23 C.J.S., Criminal Law, ยง 1411, p. 1109 et seq. Nevertheless, under the conditions herewith presented, it cannot be successfully maintained that the foreman was allowed to impose his views on the jury. The record shows each of them swore the fine of $100 was their own verdict.
"It is not error for a judge after having properly instructed a jury as to the form of their verdict, and after having asked them if they wished to retire in order to correct an irregular, incomplete, or uncertain verdict, to permit the corrections to be made in open court, where the jury has informed the court as to the true meaning of their finding, and the verdict they intended to return." See, also, Grace v. State, 5 Cir., 4 F.2d 658; Barnes v. State, 83 Tex.Crim. 207, 202 S.W. 949; Lewis v. State, 84 Tex.Crim. 499, 208 S.W. 516; State v. Cary, 124 Kan. 219, 257 P. 719; People v. Laverty, 9 Cal.App. 756, 100 P. 899. It is apparent that the procedure herein pursued was not contrary to law. Moreover, it appears that no injustice has been done.