NATHANIEL D. HIGHTOWER, Appellant,
THE STATE OF ARIZONA, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.
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.
Hall, Superior Judge.
[62 Ariz. 353] 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 [62 Ariz. 354] 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 ...