WOODLEY, Judge.
The offense is abortion by the use of a rubber tube or catheter forced into the womb of a pregnant woman; the punishment, 3 years in the penitentiary.
For a statement of the evidence, we quote the respective theories of the state and the appellant from appellant’s brief.
“It was the State’s theory that the appellant Jesse Owens after having many illicit relations with Patricia Carter, the injured female in this abortion case, performed an abortion upon her person. This operation occurring on the night of October 17, 1954, about 11 o’clock at the apartment of the said Patricia Carter. The testimony of Mrs. Carter adduced by the State showed that the appellant had Mrs. Carter buy a catheter a day before the transaction and that on the following night appellant came to her apartment and Mrs. Carter, having reconsidered, would not submit to the operation. Thereupon the appellant repeatedly struck Mrs. Carter and knocked her unconscious. That while she was in this state appellant thrust the catheter into her womb and when she recovered consciousness the catheter was still inserted and so remained until appellant left the apart[214]*214ment. After appellant’s departure Mrs. Carter removed the catheter and placed it in the bath room. She later aborted and was attended by two physicians who testified that she had been pregnant. Mrs. Carter having given birth to two children previously also testified to her pregnancy and subsequent miscarriage brought about by the insertion of the catheter. There was evidence of illness and loss of blood resulting in an abnormal condition that had continued up to the time of trial in January.”
It was the appellant’s theory that Mrs. Carter inserted the catheter herself without the aid or knowledge of appellant. That she was capable of doing so, having had an abortion performed in Fort Worth the previous year. Appellant further contended that she was a woman of vast experience and that prior to her pregnancy she had had intimate relations with many men, including her husband, in addition to the relations with appellant. That under such circumstances appellant was not obligated nor was there any reason or motive for appellant conducting himself as described by Mrs. Carter, that the actual cause of prosecution was appellant’s refusal to give Mrs. Carter $1,000.00. That on the night Mrs. Carter inserted the catheter in her privates, she called appellant and when he came to her apartment she informed him of her act and when appellant became disgusted Mrs. Carter grew angry, grabbed appellant’s hair and scratched his neck. He then slapped her across the bed where she came in contact with the wall and her injuries, if any, came as a result of this blow and contact.
The abortion statute, Art. 1191 P.C., provides for a punishment of not less than 2 nor more than 5 years, and further provides that if it be done without the consent of the female the punishment shall be doubled.
The state here sought to secure double punishment, and for that purpose alleged that the abortion was performed without the consent of the pregnant female.
The court in his charge instructed the jury that abortion as therein defined might be committed with or without the consent of the female, and authorized a conviction for abortion performed either without the consent of Mrs. Carter or abortion with her consent.
Appellant duly excepted to the submission of abortion with consent based upon the fact that the indictment alleged that it was without consent.
[215]*215The jury found appellant guilty and specifically stated in its verdict that it was with the consent of the female.
The question raised, which does not appear to have been previously decided, may be thus stated.
Where the state attempts to secure the double punishment provided in the abortion statute, and the indictment alleges that the abortion was performed without the consent of the pregnant female, will such indictment support a conviction for abortion performed with her consent?
Appellant claims a variance. His position is that the statute defines two separate and distinct ways by which the offense of abortion may be committed, (1) without the consent of the female and (2) with her consent.
Under this theory, a variance between the indictment alleging abortion without consent, and the jury’s finding that the abortion was with her consent, would be fatal to the conviction.
If this theory is correct then consent of the female is an essential element of ordinary abortion and must be alleged and proved, and a finding that the abortion was performed as alleged, but without the consent of the female, would call for an acquittal.
Consent or want of consent is not material in the offense of abortion by the means here alleged except where want of consent is alleged and proved in order that the jury be authorized to assess a double punishment.
The state urges that the conviction may be sustained upon the theory that abortion with the consent of the female is a lesser included offense, every constituent element of which is alleged in the indictment, and consent being immaterial except upon the question of punishment.
There is, however, a somewhat different category of offenses where the statute defines but one offense, but a greater punishment is provided if certain aggravating facts exist.
In this group is the offense of robbery where in the statute itself the punishment is enhanced where firearms or other deadly weapons are used; the offense of murder, which calls for a greater punishment where the killing is upon malice; and as[216]*216sault with intent to murder, where a double punishment is provided if the assault is made with a bowie knife, or dagger, by shooting into a private residence, or by a person in disguise or who lays in wait. Also the enhancement of punishment statutes, Arts. 61, 62 and 63, P.C., do not define separate offenses. Ellison v. State, 154 Texas Cr. R. 406, 227 S.W. 2d 545.
Enhanced punishment is also provided for one who acts as an accomplice where the principal is under 17 years of age, also where the accomplice stands in relation of a parent, etc., to the principal.
In both kinds of enhancement statutes it is necessary that the matter of aggravation relied upon to justify the imposition of the higher punishment be alleged in the indictment. Doyle v. State, 138 Texas Cr. R. 502, 137 S.W. 2d 26; Palmer v. State, 154 Texas Cr. R. 536, 229 S.W. 2d 174; Brady v. State, 122 Texas Cr. R. 275, 54 S.W. 2d 513; Bird v. State, 141 Texas Cr. R. 135, 147 S.W. 2d 500; Bragg v. State, 73 Texas Cr. R. 340, 166 S.W. 162 (Accomplice); 12 Texas Jur. 795, Par. 405; 27 American Jur. 653, Par. 92.
And where the state fails to prove the allegations made for the purpose of enhancing the punishment, a conviction may nevertheless be had for the primary offense, all of the constituent elements of which are alleged in the indictment and established by the evidence. See McKenzie v. State, 159 Texas Cr. R. 345, 263 S.W. 2d 562.
The question is not whether one offense includes another, but whether the indictment contains all the necessary allegations to charge the offense of which the accused is convicted. 23 Texas Jur. 688, Sec. 72.
As to the ordinary or primary offense, the allegations of the indictment as to the aggravating facts or circumstances may be treated as surplusage.
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WOODLEY, Judge.
The offense is abortion by the use of a rubber tube or catheter forced into the womb of a pregnant woman; the punishment, 3 years in the penitentiary.
For a statement of the evidence, we quote the respective theories of the state and the appellant from appellant’s brief.
“It was the State’s theory that the appellant Jesse Owens after having many illicit relations with Patricia Carter, the injured female in this abortion case, performed an abortion upon her person. This operation occurring on the night of October 17, 1954, about 11 o’clock at the apartment of the said Patricia Carter. The testimony of Mrs. Carter adduced by the State showed that the appellant had Mrs. Carter buy a catheter a day before the transaction and that on the following night appellant came to her apartment and Mrs. Carter, having reconsidered, would not submit to the operation. Thereupon the appellant repeatedly struck Mrs. Carter and knocked her unconscious. That while she was in this state appellant thrust the catheter into her womb and when she recovered consciousness the catheter was still inserted and so remained until appellant left the apart[214]*214ment. After appellant’s departure Mrs. Carter removed the catheter and placed it in the bath room. She later aborted and was attended by two physicians who testified that she had been pregnant. Mrs. Carter having given birth to two children previously also testified to her pregnancy and subsequent miscarriage brought about by the insertion of the catheter. There was evidence of illness and loss of blood resulting in an abnormal condition that had continued up to the time of trial in January.”
It was the appellant’s theory that Mrs. Carter inserted the catheter herself without the aid or knowledge of appellant. That she was capable of doing so, having had an abortion performed in Fort Worth the previous year. Appellant further contended that she was a woman of vast experience and that prior to her pregnancy she had had intimate relations with many men, including her husband, in addition to the relations with appellant. That under such circumstances appellant was not obligated nor was there any reason or motive for appellant conducting himself as described by Mrs. Carter, that the actual cause of prosecution was appellant’s refusal to give Mrs. Carter $1,000.00. That on the night Mrs. Carter inserted the catheter in her privates, she called appellant and when he came to her apartment she informed him of her act and when appellant became disgusted Mrs. Carter grew angry, grabbed appellant’s hair and scratched his neck. He then slapped her across the bed where she came in contact with the wall and her injuries, if any, came as a result of this blow and contact.
The abortion statute, Art. 1191 P.C., provides for a punishment of not less than 2 nor more than 5 years, and further provides that if it be done without the consent of the female the punishment shall be doubled.
The state here sought to secure double punishment, and for that purpose alleged that the abortion was performed without the consent of the pregnant female.
The court in his charge instructed the jury that abortion as therein defined might be committed with or without the consent of the female, and authorized a conviction for abortion performed either without the consent of Mrs. Carter or abortion with her consent.
Appellant duly excepted to the submission of abortion with consent based upon the fact that the indictment alleged that it was without consent.
[215]*215The jury found appellant guilty and specifically stated in its verdict that it was with the consent of the female.
The question raised, which does not appear to have been previously decided, may be thus stated.
Where the state attempts to secure the double punishment provided in the abortion statute, and the indictment alleges that the abortion was performed without the consent of the pregnant female, will such indictment support a conviction for abortion performed with her consent?
Appellant claims a variance. His position is that the statute defines two separate and distinct ways by which the offense of abortion may be committed, (1) without the consent of the female and (2) with her consent.
Under this theory, a variance between the indictment alleging abortion without consent, and the jury’s finding that the abortion was with her consent, would be fatal to the conviction.
If this theory is correct then consent of the female is an essential element of ordinary abortion and must be alleged and proved, and a finding that the abortion was performed as alleged, but without the consent of the female, would call for an acquittal.
Consent or want of consent is not material in the offense of abortion by the means here alleged except where want of consent is alleged and proved in order that the jury be authorized to assess a double punishment.
The state urges that the conviction may be sustained upon the theory that abortion with the consent of the female is a lesser included offense, every constituent element of which is alleged in the indictment, and consent being immaterial except upon the question of punishment.
There is, however, a somewhat different category of offenses where the statute defines but one offense, but a greater punishment is provided if certain aggravating facts exist.
In this group is the offense of robbery where in the statute itself the punishment is enhanced where firearms or other deadly weapons are used; the offense of murder, which calls for a greater punishment where the killing is upon malice; and as[216]*216sault with intent to murder, where a double punishment is provided if the assault is made with a bowie knife, or dagger, by shooting into a private residence, or by a person in disguise or who lays in wait. Also the enhancement of punishment statutes, Arts. 61, 62 and 63, P.C., do not define separate offenses. Ellison v. State, 154 Texas Cr. R. 406, 227 S.W. 2d 545.
Enhanced punishment is also provided for one who acts as an accomplice where the principal is under 17 years of age, also where the accomplice stands in relation of a parent, etc., to the principal.
In both kinds of enhancement statutes it is necessary that the matter of aggravation relied upon to justify the imposition of the higher punishment be alleged in the indictment. Doyle v. State, 138 Texas Cr. R. 502, 137 S.W. 2d 26; Palmer v. State, 154 Texas Cr. R. 536, 229 S.W. 2d 174; Brady v. State, 122 Texas Cr. R. 275, 54 S.W. 2d 513; Bird v. State, 141 Texas Cr. R. 135, 147 S.W. 2d 500; Bragg v. State, 73 Texas Cr. R. 340, 166 S.W. 162 (Accomplice); 12 Texas Jur. 795, Par. 405; 27 American Jur. 653, Par. 92.
And where the state fails to prove the allegations made for the purpose of enhancing the punishment, a conviction may nevertheless be had for the primary offense, all of the constituent elements of which are alleged in the indictment and established by the evidence. See McKenzie v. State, 159 Texas Cr. R. 345, 263 S.W. 2d 562.
The question is not whether one offense includes another, but whether the indictment contains all the necessary allegations to charge the offense of which the accused is convicted. 23 Texas Jur. 688, Sec. 72.
As to the ordinary or primary offense, the allegations of the indictment as to the aggravating facts or circumstances may be treated as surplusage.
It follows that whether abortion with consent of the female is a lesser offense, or the abortion statute defines but one offense, want of consent of the pregnant female being an aggravation calling for a double punishment, the court did not err in submitting to the jury abortion with consent, under this indictment which alleged that it was committed without consent.
Appellant suggests the applicability of the decisions under [217]*217the rape statute. The legislature has provided that, in addition to the offense known to the common law as rape, carnal knowledge of a female under the age of 18, other than the wife of the accused, with or without her consent shall also constitute the offense of rape, and be punished in the same manner as rape by force, threats or fraud.
In a prosecution for the offense of statutory rape, the indictment need not allege want of consent of the female under the age of consent, the offense being complete whether the female under 18 years of age consent or not.
This same rule we here apply to the offense of abortion. But the holding in rape cases that where force is alleged it must be proved is not deemed applicable in abortion cases for the reason that the rape statute defines two methods by which the offense may be committed, neither of which calls for an enhanced punishment. Whereas in the abortion statute, want of consent aggravates the offense and calls for double punishment.
The facts are sufficient to sustain the conviction and we find no reversible error.
The judgment is affirmed.