People v. Stuart

BRAY, J. Defendant appeals from a judgment of conviction of abortion, after jury verdict, and from the order denying new trial.

Questions Presented

1. Failure of court on its own motion to instruct on intent additionally to giving section 274, Penal Code.

2. Alleged misconduct of district attorney.

[64]Facts*

Defendant, a chiropractor, was indicted for the murder and abortion of Marion. The jury found him not guilty of murder but guilty of abortion.

Mrs. Devore, a friend of Marion’s, telephoned defendant that she had a friend who was pregnant and did not desire to have the baby, and that the friend had tried to abort herself. Defendant stated that he would talk to the friend. Nothing was said about defendant committing an abortion. That afternoon Mrs. Devore and Marion went to defendant’s office. While waiting for defendant to see them, Marion handed Mrs. Devore $250. Mrs. Devore introduced Marion to defendant. Mrs. Devore had a conversation with defendant in which he discussed the fact that all of them would be accomplices, and that Marion was only six weeks along so it should not be hard. Marion and defendant went into an inner office. After 15 minutes had passed, defendant called Mrs. Devore. She entered the inner office and defendant told her to call the fire department as Marion had suffered a heart attack. Mrs. Devore called the department. Defendant told her to get rid of the instruments and the money. Mrs. Devore threw the instruments under a couch. Marion was dead on arrival at a hospital. The prosecution’s theory was that defendant had tried to abort by the introduction of air into the uterus by use of a soft rubber catheter and a rubber syringe or bulb. Both such type items were found in his office and introduced into evidence. Two other women testified that he had aborted them by the use of air. Defendant denied using the catheter or syringe. He testified that he only used the syringe as an ear syringe and had never at any time used the catheter. He stated that after Marion had entered the treatment room she told him that she was pregnant but did not want any more children, that she had tried to commit suicide and had tried to abort herself. He then suggested that he examine her to see if she had injured herself. He inserted a vaginal speculum. He noticed a white discharge and blood. He asked her what she had been doing to herself. She mumbled something like “air.” He then removed the speculum and said he could do nothing for her. As he turned his back she cried “I can’t breathe.” He turned and began artificial respiration, and tried various methods to revive her, and continued these efforts until the fire department arrived. He denied treating