State v. Bassett.

• Decision Date: 24 January 1921
• Docket Number: No. 2295.,2295.
• Citation: 194 P. 867,26 N.M. 476
• Parties: STATEv.BASSETT.
• Court: New Mexico Supreme Court

26 N.M. 476

194 P. 867

STATE

v.BASSETT.

No. 2295.

Supreme Court of New Mexico.

Jan. 24, 1921.

Syllabus by the Court.

Under section 1464, Code 1915, the gist of the offense is the intent to murder a quick child by means of aborting the mother. In a prosecution under this section, proof of other abortions upon women where the child has not quickened is not relevant, and should be excluded.

Appeal from District Court, Union County; Leib, Judge.

William G. Bassett was convicted of murder in the second degree, and he appeals. Reversed and remanded, with directions to award new trial.

Under Code 1915, § 1464, the gist of the offense of murder in the second degree is the intent to murder a quick child by means of aborting the mother.

Louis S. Wilson, of Raton, for appellant.

C. A. Hatch, Asst. Atty. Gen., for the State.

PARKER, J.

The appellant was tried and convicted of the crime of murder in the second degree under the provisions of section 1464, Code 1915, and sentenced to a term in the penitentiary. The appeal is from that judgment.

During the progress of the trial the court administered to counsel for appellant a severe reprimand in open court and in the presence of the jury sitting for the trial of the case. In view of the admissions in the brief of C. A. Hatch, Assistant Attorney General, that there was manifest error to the prejudice of the appellant in this transaction requiring a reversal of the cause, no discussion of that phase of the case will be necessary.

1. A proposition was involved at the trial which will arise if the case is again tried in the district court, and counsel on both sides desire to have the same settled at this time.

The statute under which the appellant was prosecuted is as follows:

“Every person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother and shall have been advised by a physician to be necessary for such purpose, shall, in case the death of such child or such mother be thereby produced, be deemed guilty of murder in the second degree.” Section 1464, Code 1915.

The witnesses for the prosecution were the girl upon whom an operation was performed by the appellant, resulting in abortion, and her mother. The prosecuting witness, the girl, testified that at the time the abortion occurred she was pregnant with a quick child and that the pregnancy had progressed about six months. Appellant admitted that he aborted the woman, but that at the time she came to his sanatorium and he made his first examination of her the fetus was dead, and that it was necessary, in order to save her life and in accordance with correct medical practice, to remove the fetus with instruments, which he did. The prosecutrix further testified, over the objection of appellant, that some months later she again visited appellant's sanatorium and that he there performed another abortion upon her, in which case she had been pregnant about two months.

Strenuous objection was interposed throughout the trial to this testimony upon the ground that evidence of the second abortion was incompetent and highly prejudicial to the appellant. The district attorney explained to the court that this testimony was put forward to show the intent with which the appellant committed the first abortion upon the prosecuting witness.

The question is thus fairly presented as to when, and when not, in cases of this kind, evidence of other abortions is admissible in the prosecution for the given particular act. It is to be observed in this connection that the act of abortion is admitted by the appellant and the same is justified by him upon the ground that it was necessary in order to save the life of the mother. It therefore becomes a material inquiry to ascertain the true object and intent with which the appellant performed the operation upon the woman. The act itself is not conclusive of its character, and it may have been innocent or criminal, according to the facts.

The general rule is that when a man is put on trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of other offenses must be excluded. 8 R. C. L. title “Criminal Law,” § 194; 16 C. J. title “Criminal Law,” § 1132; 1 Bishop's New Cr. Proc. § 1120. The reasons which underlie this rule are apparent and require no elucidation. The rule is founded in a natural sense of fairness and justice with which all peoples governed by the principles of the common law view the matter. The rule, however, is subject to several important exceptions, commonly so–called. They are not really exceptions, but are part of the rule itself. Whenever the proof of another act or crime tends to prove the guilt of the person on trial, it is admissible, notwithstanding the consequences to the defendant. The state has the right to show the guilt of the defendant by any relevant fact. That that fact may be the commission of another crime is immaterial. The so–called exceptions to the general rule have been stated to be that where the proof of other acts or crimes tends to establish motive, intent, absence of a mistake or accident, a common scheme or plan, or the identity of the person charged with the commission of the crime on trial, it is admissible. See People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; Wharton's Crim. Ev. § 48; Underhill on Evidence, § 58; Abbott's Trial Brief, Crim. Trials, § 598; 1 Bishop's New Crim. Pro. § 1126. The formula is somewhat differently stated in 8 R. C. L. title “Criminal Law,” §§ 195–201; 16 C. J. title “Criminal Law,” §§ 1133–1141, and, as applied to a variety of crimes, section 1143 et seq.

These various statements of the so–called exceptions to the general rule are but statements that any evidence which tends to show the guilt of the person on trial is admissible, regardless of the fact that it may show the guilt of the defendant of another crime. If it is necessary or proper to show motive, intent, absence of...