Urga v. State

Decision Date18 July 1944
Citation20 So.2d 685,155 Fla. 86
PartiesURGA v. STATE.
CourtFlorida Supreme Court

On Rehearing En Banc Feb. 2, 1945.

Appeal from Criminal Court of Record, Hillsborough County John R. Himes, Judge.

Whitaker Brothers and Cyrus W. Fields, both of Tampa, for appellant.

J. Tom Watson Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.

PER CURIAM.

The appellant Diamante Urga, on July 8, 1943, was informed against in the Criminal Court of Record of Hillsborough County, Florida, by the County Solicitor for the violation of Section 797.01, Fla.Stats.1941, F.S.A. When arraigned she entered a plea of not guilty to the information. On the issues made thereby testimony was submitted to a jury. After being instructed by the trial court upon the law of the case, the jury returned a verdict of guilty as charged in the information. A motion for a new trial was made and denied. The trial court then sentenced the appellant to serve a term in the State Prison at hard labor of two years and six months. She has perfected her appeal therefrom to this Court. The provisions of Section 797.01, supra, are viz.: '797.01 Performing abortion; punishment. Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman does not die in consequence thereof, be punished by imprisonment in the state prison not exceeding seven years, or by fine not exceeding one thousand dollars.'

Pertinent portions of the information are viz.: '* * * that Diamante Urga, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 26th day of June, in the year of Our Lord one thousand nine hundred and forty-three with force and arms at and in the County of Hillsborough aforesaid, did willfully, unlawfully and feloniously administer certain poisons, drugs, medicines and other noxious things to Clara Belle Shaw, who was then and there a woman pregnant with child and did unlawfully use certain instruments and other means, the nature of which other means is to the county solicitor unknown, in and upon the said Clara Belle Shaw, with the intent to procure the miscarriage of the said Clara Belle Shaw, in consequence whereof the said Clara Belle Shaw did not die, against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida; * * *' (Italics supplied.) Counsel for appellant pose five questions for adjudication on this appeal. It is apparent that these questions can or may be disposed of or ruled upon under two or possibly three separate assignments:

First: Where an informantion contains unnecessary descriptive allegations, is the State required to prove such allegations?

Second: Where an information in charging the offense of abortion alleges that the woman upon whom it was performed 'was then and there pregnant with child', and at the trial the State introduces witnesses in chief whose testimony is confined to proving this allegation; and the entire theory and structure of the State's case, from the charge laid in the information to the testimony presented before the jury was that such pregnancy existed at the time the defendant committed said alleged acts, under this state of the case, does the question of pregnancy become a material issue?

Third: When testimony is introduced by the prosecution in an attempt to prove its theory of a case and such testimony is in fact admissible, and the defendant meets that theory with her proofs and the trial Judge arbitrarily and of his own motion withdraws such theory and testimony from the consideration of the jury, does this not amount to an impairment of defendant's right to a jury trial?

The statute, supra, under which the information was drafted, was construed by this Court in the case of Eggart v. State, 40 Fla. 527, 25 So. 144, 146. It was there contended that the information should allege, not only that the woman was pregnant, but was quick with child, and it was argued that at the common law it was no crime to procure the miscarriage of a woman with her consent. The answer to the contention was that the statute under which the indictment was drawn as enacted by the Legislature made material changes in the then existing common-law rule applicable to the crime of abortion.

It was said: 'Our statute (Section 797.01 (F.S.A.), like those from which it was borrowed, was designed to punish the attempt to procure the miscarriage of any woman by any means mentioned in the statute, whenever such attempt is made with an unlawful intent.' (Emphasis supplied.) See McDonald v. State, 70 Fla. 250, 70 So. 24; Weighnovel v. State, 46 Fla. 1, 35 So. 856.

It is true that the statute, supra, does not, nor do decisions construing the statute against abortion, make the allegation: 'who was then and there a woman pregnant with child', appearing in the information, an essential element of the crime of abortion. Evidence was adduced by the State during the trial to establish this nonessential allegation in the information. The testimony of an Army physician is to the effect that Clara Belle Shaw was pregnant on June 26, 1943; that she had applied certain home remedies calculated to effect an abortion; the physician advised that she discontinue these practices, but she went to the office of appellant and arranged for her services. It is an inference deductible from the testimony that Clara Belle Shaw desired an abortion. We observe disputes and conflicts in the evidence between the State witnesses and defendant as to what was said and done in the office of the appellant, but it harmonizes on minor points, such as they paid the appellant $60 and made three separate trips to the office, and the sister was present at the time of the alleged operation.

Pertinent parts of the challenged instructions are viz.: '* * * The gist of the statutory offense is the intent to terminate the creation by nature of a child and the intent to bring about the miscarriage of a woman. That is what the statute is intended to prohibit; and if it is done with that intent and if the means employed come with the scope of the statute, of course it follows that it is immaterial as to whether or not the woman was pregnant. But it must follow from that, of necessity, that unless the accused has that intent, and believes that the woman is pregnant, then the accused would not be guilty of violating the statute. It might be that if a person who was not a licensed physician operated upon a woman for the purpose of removing a dead foetus, or for the purpose of removing any other product of pregnancy, that the person doing that might be guilty of practicing medicine without having been properly licensed; that is not the charge in this case. This information only has one count charging the violation of this statute.

'So if you find, or have a reasonable doubt, that the accused was only operating to remove a dead foetus, or believed that the party, Clara Belle Shaw, was not pregnant, or believed that the foetus was dead, and the intent was only to operate to remove the foetus or other product of pregnancy, then the unlawful intent required by the statute could not exist. On the other hand, as I have said, it doesn't make any difference whether or not this Clara Belle Shaw was pregnant, it does not make any difference whether or not the foetus was in fact alive or dead, if the defendant believed that Clara Belle Shaw was pregnant, and if she intended to procure a miscarriage on Clara Belle Shaw, and employed the means charged in the information, then she would be guilty.

'It is also the law that the consent of the other party is immaterial; in other words, no woman can legally confer consent to any one to produce an abortion.'

It is contended that the instructions, supra, resulted in an undue advantage against the appellant and in behalf of the prosecution because the jury had heard the evidence offered in support of the condition of pregnancy; the home remedies employed by the prosecutrix to effect an abortion; the details of her treatment by a physician; her consistent bleeding and continuous pains, were impressive on the jury; the representation of the husband to the defendant in effect that they had been told by doctors that she (the prosecutrix) was not pregnant and that they were not interested in having an abortion or miscarriage performed, but sought her (the appellant's) services for the purpose of obtaining relief from severe continuous pains and constant bleeding, which had been sought through treatment by a...

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11 cases
  • State v. Barquet
    • United States
    • Florida Supreme Court
    • February 14, 1972
    ...L.Ed.2d 980 (1967); Weightnovel v. State, 46 Fla. 1, 35 So. 856 (1904); Eggart v. State, 40 Fla. 527, 25 So. 144 (1899); Urga v. State, 155 Fla. 86, 20 So.2d 685 (1945); Graham v. State, 153 Fla. 807, 16 So.2d 59 (1944); Sinnefia v. State, 100 So.2d 837 (Fla.App.3rd 1958); Nations v. State,......
  • Rodriquez v. State
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    • Florida District Court of Appeals
    • June 29, 1966
    ...the filing of the petition for rehearing, and are found to be without merit. See: Gustine v. State, 86 Fla. 24, 97 So. 207; Urga v. State, 155 Fla. 86, 20 So.2d 685; Pittman v. State, Fla.1950, 47 So.2d 691; People v. Berger, 131 Cal.App.2d 127, 280 P.2d 136; People v. Woods, 24 Ill.2d 154,......
  • Ingleton v. State, 96-187
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    • September 26, 1997
    ...of the intent to commit a felony even where the charge alleged the intent to commit a particular felony. See also Urga v. State, 155 Fla. 86, 20 So.2d 685 (1944); Thomas v. State, 183 So.2d 297, 299 (Fla. 3d DCA The essential elements of the grand jury's first-degree murder charge against I......
  • Urga v. State
    • United States
    • Florida District Court of Appeals
    • May 10, 1963
    ...pregnancy of the 'victim' is not an essential component of the statutory offense charged in the information. See Urga v. State, 1944, 155 Fla. 86, 20 So.2d 685, 687; Eggart v. State, 1898, 40 Fla. 527, 25 So. 144, 149. The defendant's final contention is that she was denied a fair trial in ......
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