The opinion
*145 ON MOTION FOR REHEARING.
WOODLEY, Judge.
Regarding the possession and control of the premises where the abortion was shown to have occurred, our attention is directed to the following testimony of the witness Marjorie Benavides: “I do not know Mrs. Roberta Jar quin personally but do know her by sight, and see her now in the court room. I have seen her at that shack, sometimes every day and sometimes twice a day. I have seen her just at any hours. It did not make any different what hours, and that was true on or about the 2nd day of April, 1949.”
We are unable to agree with appellant’s contention that such evidence shows possession or control of the premises searched to have been in appellant. But in any event, the offense being committed within view of the officers called to the scene they were authorized to arrest without warrant the offender, and as an incident to the arrest, to search the premises. The evidence thus obtained was admissible.
Bill of Exception No. 4 shows that many articles, instruments and paraphernalia found in the “shack” and seized by the officers were exhibited before the jury. Appellant complains of our disposition of said bill, and contends that much of such paraphernalia did not tend to illustrate any point in the case and had no probative value. It now appears that appellant’s chief complaint is as to the arrangement of the articles in view of the jury and their exhibition in the courtroom throughout the trial.
Appellant concedes that some of the articles so displayed were admissible and it is not shown which of the articles are claimed to be inadmissible, nor is it shown that any article claimed to be inadmissible was of a character such as might inflame the minds of the jury, or prejudice the rights of appellant. We remain convinced that no error is shown by this bill.
The indictment charged that appellant committed the abortion by destroying the life of the fetus in the womb.
Under the court’s charge, the jury was required to so find in order to convict.
Appellant contends that the evidence failed to establish the destruction of a live fetus in the womb rather than the pro *146 ducing of a premature birth thereof, another and different manner of violating the abortion statute.
The trial court required the jury to find beyond a reasonable doubt that the offense was committed by the means charged in the indictment, that is, that the defendant destroyed a live fetus while in the womb of the woman. And at the request of appellant, the jury was instructed that they could not convict upon a finding only that a premature birth was caused.
The victim of the abortion testified that she was about two months advanced in pregnancy at the time of the abortion.
Dr. Boyd testified that she was a little over two months pregnant when he examined her in March, and that pregnancy had terminated when he saw her in April at the hospital and found her under the influence of ether and bleeding from the vagina.
Dr. Todd testified concerning the instruments found at the “shack,” and the exhibits brought to him for examination, including a piece of the umbilical cord and a placenta badly shredded and torn. He testified that the placenta is one of the last organs formed in pregnancy, and is located on the wall of the uterus, its purpose being to protect the fetus from injury.
The fetus, at two or three months, he described as about l/12th of a centimeter in size, extremely delicate and a very fragile piece of tissue.
Referring to Exhibit No. 5, Dr. Todd testified:
“This Exhibit No. 5 is called a curette and it is an instrument used for insertion into the cavity of the uterus or womb for the purpose of scraping out the contents.
“The embryo is carried in the womb of a woman, and the curette is used to scrape out the womb.
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“This Exhibit No. 5, if applied to a fetus of two or three months could spread it all to pieces. It depends on the was it is used. It could mash it to a pulp. That is one of the biggest I have ever seen.”
Officer Jay Higdon testified that Exhibit 5 and other tools *147 and instruments were found under the mattress of the bed; that the instruments were bloody and had flesh on them.
Such testimony, together with the other facts and circumstances, this being a circumstantial evidence case, are sufficient to show that the life of the fetus was destroyed in connection with the abortion, and to sustain the jury verdict under the court’s charge.
Appellant’s motion for rehearing is overruled.
Opinion approved by the court.