State v. Cushing

• Decision Date: 16 December 1941
• Docket Number: 3343.
• Citation: 120 P.2d 208,61 Nev. 132
• Parties: STATE v. CUSHING et al.
• Court: Nevada Supreme Court

120 P.2d 208

61 Nev. 132

STATE v. CUSHING et al.

No. 3343.

Supreme Court of Nevada

December 16, 1941

Appeal from District Court, Second Judicial District, Washoe County B. F. Curler, Judge.

Paul Cushing and another were convicted of abortion, and they appeal.

Affirmed.

Anthony M. Turano, of Reno, for appellants.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., and Ernest S. Brown, Dist. Atty., and Myron R Adams and Nash P. Morgan, Deputy Dist. Attys., all of Reno for respondent.

DUCKER Chief Justice.

The appellants, Cushing and Rankin, together with Ruth Barnett and Valentine St. John, were charged in the district court with a felony. The charging part of the information is as follows: "That the said defendants on the 14th day of November, 1940, or thereabouts, and before the filing of this information, at and within the County of Washoe, State of Nevada, did then and there wilfully, unlawfully and feloniously use and employ a certain instrument, the exact nature of which said instrument is to this affiant as yet unknown, in and about and upon and within the body of one B.

Price, the said B. Price being then and there a woman pregnant with child, as defendants then and there well knew, with intent thereby, then and there, to procure the miscarriage of her, the said B. Price, the use of said instrument as aforesaid not being then and there nor at all necessary to preserve the life of the said B. Price, or that of the child whereof she was pregnant."

The appellants pleaded not guilty. The jury found them guilty as charged in the information. During the course of the trial the defendant Ruth Barnett, on motion of the district attorney, was discharged and became a witness for the state.

The defendant Valentine St. John, who had been admitted to bail, failed to appear for trial. Cushing and Rankin have appealed from the judgment and order denying their motion for a new trial.

The State does not contend that appellants actually committed the acts alleged in the information, or that being present they participated in their commission. It was the theory of the State that prior to the time alleged in the information appellants and defendants St. John and Barnett entered into a common plan or scheme to perform unlawful abortions in the state of Nevada, and that pursuant thereto Ruth Barnett performed the acts alleged in the information, and that by reason of such plan or scheme appellants became accessories before the fact to the crime chargeable and punishable as principals. The trial court instructed the jury to that effect.

Before passing on the number of errors assigned, it is deemed advisable to state the facts which the state claims show such common plan or scheme on the part of the persons heretofore designated. In this statement they will be referred to as Cushing, Rankin, St. John and Ruth Barnett.

During the month of July, 1940, Rankin and Cushing resided in San Francisco, California, St. John resided in Oakland, California, and Ruth Barnett resided in Portland, Oregon. According to her testimony she was a naturopath and had been engaged in performing abortions. Rankin, who had known her and St. John for several years, went to Portland in the month of July where he had arranged to meet her, and explained to her that he wanted to promote a big spa at Steamboat Springs, Nevada. Shortly afterwards she flew down to San Francisco and met Rankin, who flew with her to Reno and together they visited Steamboat Springs and Lawton Hot Springs in that vicinity.

In the first part of July, Rankin was in Reno and visited Norman Biltz, a real estate broker, at the latter's office, representing to Biltz that he was in the finance business and wanted office space in Reno. Biltz suggested that he look at the E. C. Lyon Building, of which he was part owner and manager. Rankin inspected the premises the same day and returned to the office and inquired about the rent and as to whether the offices would be redecorated. He said that he saw some adjoining space there that some clients of his in California, that he did some financing for, might be interested in, and that he would see them in California. Later in July, according to Norman Biltz, Cushing came to his office in Reno and said that he had been in conversation with Rankin, who was secretray to St. John, and they were interested in opening a clinic in Reno. They discussed the space in the Lyon Building, what improvements could be put in by the building, and the type of lease. A lease was executed on the 16th day of July, 1940, for the space in the buiding which composed rooms numbered 301-2-3-4-5-6 and 7, between Biltz and associates, as lessors, and St. John as lessee, by his agent Cushing, for the term of five years commencing in September, 1940, at a total rent of $12,225.

During Cushings first conversation with Biltz concerning the procuring of office space in the Lyon Building, he explained what sort of medical work they contemplated doing in the Lyon Building, which was the treatment of women's diseases, and included curettements and abortions. He explained that St. John was retired but had controlled clinics which operated in the treatment of women's diseases and did curettements for doctors; that St. John had spent his lifetime developing the method and instruments that they used to do it, and that the doctors liked the technique they had developed over a period of thirty years, because it was painless and safe. Cushing said he would like to contact the doctors in the community to see if their services were wanted by them and asked Biltz what he thought the attitude of the community at large would be, and what the attitude of the law would be. Biltz said if they operated through the law he was sure they would have no trouble, and gave him a list of doctors in Reno.

Later, about the 20th of July, 1940, Cushing came to the Biltz office in Reno with St. John, and a discussion ensued concerning Steamboat Springs. St. John said he was interested in purchasing Steamboat Springs and wanted to get a license in Nevada, but thought he could not get it in this state because of the fact that he was educated and graduated from a foreign university. Biltz sent him to see Dr. Cantlon of Reno concerning this. St. John was unable to obtain a license to practice in Nevada. Biltz, acting as agent for St. John, contacted the owner of Steamboat Springs for the purpose of purchasing the property. The deal was never consummated.

Cushing was considerably exercised about the failure of St. John to obtain a license, and on July 31, 1940, in San Francisco, wrote to Biltz in Reno expressing his disappointment. In this letter he said: "The difficulty lies in our absolute necessity of having a regularly licensed physician to act as titular head of the Reno offices. You will understand that the disappointment regarding St. John's license was a considerable set-back in our plans. Efforts are now being made here to find a man eligible to receive a Nevada license for this purpose. In the interim, can you suggest a man in your locality who would, for a consideration, be interested in lending his name to the office? Naturally, such an individual would have no responsibilities other than those implied in the use of his license and name."

Again, on August 9, 1940, from San Francisco, Cushing wrote to Biltz saying: "Our search for a proper man to head the Reno office continues; hence my delay in getting in touch with you this past week."

After efforts to obtain a license for St. John or a substitute to act in his stead had failed, Ruth Barnett came to San Francisco on August 19, 1940. Cushing met her at the St. Francis Hotel, drove her to Oakland and introduced her to St. John at the Leamington Hotel. A conversation took place between them relative to the premises, 307 Lyon Building, in Reno. They wanted her to go over and rush the completion of the carpenter work in fixing up the offices. At the time they both knew that she was an abortionist and it was understood that she was going to Reno to perform abortions in the premises known as 307 Lyon Building. Later in the day she had a discussion with St. John and Rankin as to what use was to be made of those premises. It was to be used as a clinic, St. John was going to take care of many kinds of cases and also therapeutic abortions. They wanted her to go there and arrange the office and pick out furniture and drugs. It was understood that she was to perform abortions. Rankin had known for several years that she was an abortionist. Later she discussed that particular kind of work with St. John several times. On the 23rd of September, 1940, Rankin signed and executed a written contract with G. Warren Campbell, contractor for Biltz and associates, providing for the remodeling of the premises which had been formerly leased by the latter to Cushing. Prior to Ruth Barnett coming to Reno to work in and take charge of the Reno office of Cushing, Rankin and St. John, and in Oakland, she and St. John and Cushing bought an operating table, knee crutches and surgical instruments to furnish the premises 307 Lyon Building in Reno. This equipment was shipped to Reno and used in the office in the Lyon Building. Certain abortion instruments were found in the Reno office in a bag at the time of the arrest of Ruth Barnett. She testified that she brought them with her from Portland.

Ruth Barnett came to Reno on the 14th of October, 1940, in company with Rankin, and took charge of the premises 307 Lyon Building, picking out furniture for it and other items and generally arranging the whole office. In selecting these articles in Reno she was assisted by a Mr. Perry of Sparks who had been introduced to her by Rankin in July. The...