The opinion
ON SECOND MOTION FOR REHEARING.
MORRISON, Judge.
Appellant forcefully contends that the proof failed to establish the following allegations in the indictment:
“1. That the means used (by which the abortion was committed) were to the grand jurors unknown.
“2. That by the exercise of reasonable diligence such means could not be ascertained.”
Let us briefly review the facts in the light of this contention.
The alleged abortion was committed on the prosecuting witness on August 25, 1951, by forcing “some sort of fluid or paste” into her uterus. After this operation she noticed a brown discoloration on her dress.
This is all the information she had or that was ever available to the prosecution or the grand jury about the substance that was used to bring about the abortion.
On February 25, 1952, the officers searched appellant’s clinic and recovered a jar of a brown paste-like fluid. This was analyzed, and the grand jury presumably had such analysis at the time they returned this indictment against the accused.
The grand jury did not know, and could not have by the exercise of limitless diligence been able to prove, that the two substances were the same. The grand jury had no way of knowing what were the chemical components of the fluid used to bring about the abortion on August 25, 1951.
Under the facts as outlined above, the allegation in the indictment was proper and supported by the proof.
Appellant’s second motion for rehearing is overruled.