Hightower v. State, Criminal 950

• Decision Date: 13 April 1945
• Docket Number: Criminal 950
• Citation: 62 Ariz. 351,158 P.2d 156
• Parties: NATHANIEL D. HIGHTOWER, Appellant, v. THE STATE OF ARIZONA, Appellee
• Court: Arizona Supreme Court

158 P.2d 156

62 Ariz. 351

NATHANIEL D. HIGHTOWER, Appellant, v. THE STATE OF ARIZONA, Appellee

Criminal No. 950

Supreme Court of Arizona

April 13, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.

Judgment affirmed.

Messrs Lewkowitz and Wein, and Mr. Jacob Morgan, for Appellant.

Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General; Mr. James A. Walsh, County Attorney, and Mr. R. H. Renaud, Deputy County Attorney, for Appellee.

Hall Superior Judge. Stanford, C. J., and Morgan, J., concur.

OPINION

Hall Superior Judge.

Nathaniel D. Hightower, the defendant, was informed against by the county attorney of Maricopa County for the crime of murder in the second degree in Count One and for the crime of abortion in Count Two.

The defendant, at the time of the alleged offense, was a duly licensed and practicing physician in Maricopa County, Arizona. Viola Pickens Stiles, a married woman, whom the state claims was pregnant with child, received medical treatment from the defendant and soon thereafter died. He was tried and acquitted of the crime of murder and found guilty of the crime of abortion. He was by the court sentenced and has prosecuted this appeal.

There are twenty-two assignments of error which may be grouped under nine propositions of law.

The defendant contends that since he was acquitted of murder he must necessarily be exonerated of abortion because the information and bill of particulars are based upon the same state of facts. The contention would have merit if both offenses contained the same essential elements. One of the necessary ingredients of a murder charge is that there must be a killing of a human being with malice aforethought. No such element, of course, is included in a charge of abortion.

As stated by the Supreme Court of California in People v. Coltrin, 5 Cal.2d 649, 55 P.2d 1161, 1167:

"The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only are these two offenses separate and distinct in a legal sense and each dependent upon evidence not required in the other, but as a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element."

In the instant case there was some evidence that the victim of the abortion, Viola Pickens Stiles, was suffering from an infection of gonorrhea at the time of the alleged acts of the defendant. This evidence might have raised in the jury's mind a reasonable doubt as to the cause of death.

The defendant assigns as error the admission of certain testimony tending to prove that the defendant had previously committed an abortion upon another woman by the name of Sara Mangares. The said Sara Mangares testified that she received treatments from the defendant after she missed a menstrual period; that her health was good; that she didn't want to have another baby; that the defendant used instruments in treating her; and that one instrument "looked like a long spoon." She testified that she experienced pain; that she passed a baby and that the defendant stated to her that he knew his acts were against the law. Her testimony, if true, unquestionably established the crime of abortion.

In the instant case there was evidence tending to prove that the female was pregnant with child and that an operation was not necessary to save her life. The victim's mother testified that the defendant used certain instruments and that her daughter suffered intense pain therefrom; that one of the instruments "looked like shears crossed with a lot of little knives on it; part of the time he had it wrapped in cotton and part of the time he didn't have. Then he had another long instrument there with a couple of prongs or things, he would wrap that and dig and dig up in there and wipe and pull."

In the case at bar the defendant contended at all times that he treated the said Viola Pickens Stiles for an infection of gonorrhea and denied absolutely that he performed, or attempted to perform, an abortion upon her.

As a general rule upon the trial for a particular crime, evidence which tends to show the commission of another and distinct offense by the defendant is inadmissible. But the courts generally hold that where an offense is of such nature that proof of the act with which the defendant is charged is not in itself proof of the required criminal intent, and where additional proof of such intent is necessary to prove the crime charged, evidence of other offenses of a similar nature committed by the defendant is admissible for the purpose of proving intent. People v. Coltrin, supra; People v. Darby, 64 Cal.App. (2d) 25, 148 P.2d 28, 31.

The intent of the defendant in giving treatment may be shown by proof of the circumstances of other similar offenses. In the case of People v. Darby, supra, the California court, in dealing with this question as applied to abortions, said:

". . . There must be reasonable ground to argue that the intent with which the treatment was given in the case on trial was shown to be criminal by proof of the circumstances of the other offenses. Such a situation would be presented if it had been proved that the defendant in the case on trial had inserted into the vagina a certain surgical instrument under circumstances leaving the question of his intent in so doing open to doubt, and it was also shown that on the other occasions a similar instrument had been similarly used for the purpose of bringing about a miscarriage. . . ."

We believe that since instrumentation was used in both cases, the instant case falls squarely within the exception as above set forth. Had not instrumentation or a similar plan been used in both cases, the evidence of Sara Mangares would not have been admissible.

The defendant assigns error in that the state did not prove the removal of the fetus and therefore failed in proving the corpus delicti.

Our Statute, Article 3, Section 43-301, on Abortion reads:

"Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to save her life, is punishable by imprisonment in the state prison not less than two (2)...