As bearing upon the question of intent, another woman was permitted to testify to an operation performed on her by appellant Lewis. • The occurrence was nearly two years prior to that in question, and resulted in a miscarriage. The reception of this evidence is principally relied upon for reversal. ’
Appellants here contend that there was no such question of intent in the case as called for or warranted evidence of an independent offense. The use of instruments, just about as the state’s witness testified, was admitted by appellant Lewis. He claimed, however, that his use of the instrument was merely in making an examination; that he performed no operation at all; that the examination disclosed that the patient already had lacerations about the womb, no doubt from a previous attempt at abortion, and was about to miscarry.
The issue of fact might thus be stated: Did appellant Lewis perform an operation, or did he make an examination? Counsel for appellants see in this merely a difference as to what was done. The state considers it a difference as to what, was intended. We think ■that appellants’ present position is not now open to them, because of lack of proper and timely-objeetion.
Two specific objections were made. The first was that the circumstance was too remote. That is not here urged as a ground for reversal, apd so may be dismissed.
■ The second of the specific objections was that the proper foundation had not been laid. In explanation of that objection counsel said: “The statute provides when abortions are legal and when they are illegal.” The court then brought out from the witness that there had been no consultation of physicians. The learned trial judge evidently understood counsel’s objection and explanation to mean that an operation, lawful under the statute, would not be competent evidence. No other meaning has been suggested or occurs to us. *220Certainly there was no specific objection that intent was not involved, and that evidence of similar offenses was inadmissible.
The objection here telied on was first made at the close of the' state’s case, as a ground upon which appellants moved for a mistrial. There was no motion to strike. Had there been, or if the motion for a mistrial could be treated as a motion to strike, it was too late, and, the matter being discretionary, there is no reversible error. State v. Ward, 30 N. M. 111, 228 P. 180, and cases cited.
Appellants demurred to the information on the ground that it failed to negative that the act culminated in the death of the patient. They say that, if they had wished to plead guilty, they would not have known which section of the statute was invoked, or which of the prescribed penalties was applicable, and that the court, in passing sentence, would have been in the same situation. We find no merit in the objection or the argument. Clearly this information is under the first section. Evidence of the woman’s death could not have been received, and any judgment based on such evidence would have been erroneous.
Point is made of a refusal to instruct that, if the abortion was produced by self-administered drugs, appellants should be found not guilty. The tendered instruction was clearly erroneous. No actual abortion was essential to the conviction. The offense was completed by the attempt to produce it.
Appellant Lewis, on cross-examination, denied that he used a dilator, and claimed that he used a speculum. The district attorney produced a surgical instrument, and, over objection, inquired whether it was the one or the other. We find no error in this. Nor do we see how anything said in State v. Grissom, supra, cited by counsel, aids their contention.
The judgment will be .affirmed. It is so ordered.
BIOKLET, - C. J., and PARKER and SAD-LER, JJ.,' concur.