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District Court of Appeal, Second District, Division 2, California.


Cr. 4274.

Decided: February 16, 1949

Samuel L. Laidig, of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., Frank Richards, Deputy Atty. Gen. and William E. Simpson, Dist. Atty. and Jere Sullivan, Deputy Dist. Atty., both of Los Angeles, for respondent.

Having been accused of abortion (count 1) and murder (count 2), defendant was convicted as charged in the first count and of manslaughter under the second. After sentence for the term prescribed by law as to each crime he makes seven assignments of error as grounds for reversal of the judgments and of the order denying his motion for a new trial.

The Evidence is Sufficient to Support Both Judgments.

Section 274 of the Penal Code makes it a felony for any person to use an instrument or drug or other means on a woman “with intent” thereby to effect a miscarriage unless such act is necessary to preserve her life.

Deceased, Birda Mae Johnson, was a healthy woman, 26 years of age, the mother of seven children. Appellant, a licensed chiropractor, admits that “the record is completely devoid of any evidence tending to prove the necessity for the performance of an operation upon the deceased.” After she had told her husband that she had missed her period, Mr. Johnson called upon appellant. Although Johnson was an accomplice, his narrative of events, following his wife's declaration that she did not wish to have a baby, completes the proof of appellant's guilt. In answer to Johnson's inquiry as to whether appellant could procure an abortion the doctor stated that he was “good at it”; that he had done it many times; that Johnson had nothing to worry about and that the minimum fee was $250. After leaving the office of appellant with the latter's card and telephone number Johnson visited a bank for the purpose of borrowing the required sum. The manager prepared papers for execution by Johnson and his wife whereby they agreed to pay the bank $265 in successive monthly installments of $22 each. The loan was verified by the bank's records.

On October 22 Johnson telephoned appellant that Mrs. Johnson was coming to his office and had exactly the amount of his fee. Appellant assured him that he would send her home in a cab and that everything would be all right. That evening Birda Mae was feeble; dirty water ran from her and she remained at home for two days thereafter. Appellant by telephone instructed Johnson to remove a cotton ball from his wife's vagina. Having reported his compliance he was told by appellant to bring a specimen of Birda Mae's urine to his office. When in subsequent conversations Johnson reported that she was not bleeding and everything was all right, appellant replied: “That's good; have her stop taking those pills.” Thereafter he told Johnson to send his wife in for a check-up. While she was there, about November 15, Johnson paid his second visit to appellant's office when the latter advised the husband that it would be about eight weeks before his wife would menstruate normally; that the laboratory test showed that she was not pregnant. He gave his patient some vitamin pills which he said cost $9 and told her as soon as she had normal menstruation he would insert the “button” previously promised.

In December Johnson told appellant his wife thought she was still pregnant but that he did not know. Appellant assured him that her failure to menstruate was because she was scared and nervous. On December 28 when Johnson reported the same condition appellant asked him to have her come to his office. She visited appellant on the 29th when he used instruments on her. She returned home very ill. At 6:30 Johnson found her very sick, vomiting, and flowing blood. When the husband reported her condition of violent nausea on December 30 appellant told him she would be all right: “Just keep giving her coffee * I didn't do anything to her but open the tip of her womb.” When her continued deterioration was reported on December 31 appellant said: “There isn't anything the matter with her. She is all right.”

When on January 1 Johnson experienced difficulty in gaining entrance into appellant's office, he told appellant that a physician would treat his wife if appellant would release her. Appellant then gave Johnson some Fenamint for Birda Mae to chew to relieve her bowels. Finding her very low in the evening Johnson notified appellant he was going to send her to the General Hospital. Appellant protested that “those people don't know what to do” and offered to send an ambulance at once to take her to a private hospital. This he did. As Johnson rode with her in the ambulance she was still flowing. Appellant promised to take care of her at the hospital. She remained 12 days. After a conference with Dr. Donohue, a consultant in obstetrics and urology, Johnson reminded appellant by telephone that the latter had not advised the hospital what ailed Birda Mae. Appellant instructed Johnson to keep quiet; not to be talking too much. He last saw his wife at the General Hospital prior to her death.

The testimony of Joanne, the 12–year–old daughter of the couple corroborates her father's story. On December 29, 1947, she accompanied her mother to appellant's office. She remained in the outer office while her mother entered another room with the chiropractor. When her mother returned the doctor came out behind her. Mrs. Johnson was sick. Appellant remarked that he would call a cab. This he did and the cab driver helped the mother downstairs and into the vehicle.

As they left the chiropractor, he told Joanne to have her father call him. At the same time he gave Mrs. Johnson some pills and told her to take the little pills three times daily but to take the large ones only if she had pain. After entering the cab the sick woman's vomiting detained them for a time. On arriving at home the mother retired to her bed and asked the child to prepare food. This was done but she could not eat. She began to vomit and remained in bed vomiting intermittently until January 1 when she was taken to the private hospital about noon.

Doctor Donohue there made a bimanual examination, ran a blood count, found the patient's lower abdomen tender, and a brown fetid water discharging from her vagina. She was in profound lethargy, listless and vague. She told him that she had vomited and suffered diarrhea four or five days and had continual cramps in the pelvis. The blood count showed that her white cells were low. Appellant telephoned each day during her 12–day stay at the private hospital to inquire as to the woman's general condition. She was critically ill, her condition growing more unsatisfactory and her lower abdominal region having a tendency to abscess formation.

On January 13 Mrs. Johnson was transferred to the General Hospital. Dr. Grant, resident gynecologist, read the history of her case, attended Dr. Hague while the latter examined Birda Mae and concluded that she had general peritonitis. On the 19th Dr. Grant's examination disclosed a purulent, bloody discharge, the cervix softened and closed, and the abdominal muscles rigid. It was his opinion then that she had been recently pregnant and was infected in the pelvic area. Doses of penicillin, streptomycin, oxygen and intravenous fluids failed to alter her prognosis. The witness concluded that there had been some instrumentation of the uterus which was the source of infection. The unfortunate woman died at midday on January 23, 1948.

The conduct of appellant following the denouncement of his criminal activities is also persuasive of his guilt. On January 22 two officers rang the bell at his office but received no response. After discovering his motor car on the premises they attempted in vain to gain entrance at the rear door upstairs. At the front door they were admitted by a young lady. They found appellant in a room upstairs. Besides the usual chiropractor's equipment they found numerous surgical instruments in his office. He told the officers that he had treated Birda Mae for female disorders; that she had paid him a few dollars intermittently; that she had called only a few times—of which he had kept no record. When they took him under arrest to Mrs. Johnson's bedside she promptly recognized him, and in answer to officer Lohrman's inquiry she said that Dr. Powell “killed” her.

The records of the General Hospital showed that the final diagnosis was septic abortion, perforated uterus, faecal peritonitis, septicemia and pelvic abscesses. The autopsy surgeon testified that “there was a definite degeneration of tissue and the tissue at the top of the uterus had a necrosis which extended right down into the internal cavity. * It was indicative of probable trauma. * The right ovary showed a recent corpus lutum which is an indication of a recent pregnancy.”

Accomplice Corroborated By Appellant

Notwithstanding his denial of the agreement with the husband to cause a miscarriage for $250 and his declaration that he did not use an instrument on Mrs. Johnson, appellant's testimony in the main parallels that of the husband. He testified that Birda Mae came to his office October 23, November 17 and again on December 29; that on her first visit he asked her the date of her last period; that he treated her for female troubles; that Johnson talked to him frequently by telephone between October 23 and January 1 about her condition and brought urine specimens. He recounted his daily telephonic communications with Dr. Donohue to whom he admitted telling of his patient's dehydration and of his reports from the General Hospital that Mrs. Johnson's condition was critical. He admitted that Joanne's narrative of the events of December 29 was correct; that the instruments produced by the officers had been taken from his office; and that his license as a chiropractor did not authorize him to practice medicine or surgery. Prior to her arrival at the private hospital appellant told Dr. Donohue by telephone that he had a patient who was severly dehydrated; had been suffering from vomiting and diarrhea; was quite ill and required hospitalization and that he thought she had intestinal flu.

Such testimony creates more than a suspicion of guilt, People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720; People v. Garner, 60 Cal.App.2d 63, 65, 140 P.2d 146, and taken with that of the 12–year–old daughter constitutes complete corroboration of the revelations of the husband. The weight to be given to the testimony of an accomplice as well as the sufficiency and weight of the corroboration is for the jury's determination. People v. Trujillo, 32 Cal.2d 105, 194 P.2d 681. In view of the law that it is the exclusive function of the trial court to determine factual issues, People v. Pruitt, 55 Cal.App.2d 272, 275, 130 P.2d 767, it is not within the province of this court to reverse a finding of fact unless the record shows clearly that upon no hypothesis whatsoever is there sufficient evidence to support such finding. People v. Lindley, 26 Cal.2d 780, 791, 161 P.2d 227; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.

Abortion Was Proved.

Inasmuch as pregnancy is not essential to the crime of abortion, Penal Code, sec. 274, the offense is established when it is shown that an instrument was used for the purpose of “procuring” a miscarriage. People v. Ramsey, 83 Cal.App.2d 707, 717, 189 P.2d 802. Such proof was made by the evidence of (1) Mrs. Johnson's nausea on leaving appellant's office December 29; (2) her continued violent sickness thereafter until her death; (3) opinions of the hospitals' physicians that instrumentation had been used upon her; (4) her infected uterus and her peritonitis; (5) appellant's agreement with the husband to cause a miscarriage; (6) his daily inquiries at the hospitals concerning her condition; and (7) his attempts to avoid the officers when they called at his office on January 22, 1948, and other circumstances recited by the witnesses. In addition, the testimony of the husband-accomplice, supported as above shown, was convincing proof of appellant's crime. People v. Thompson, 69 Cal.App.2d 80, 85, 158 P.2d 213. The husband's agreement to pay appellant $250 for the abortion, his borrowing that sum just prior to his wife's first visit to appellant, his removal of the cotton ball pursuant to appellant's instruction, his testimony as to his wife's progress—these facts together with the testimony of Doctors Donohue and Grant and the records of the General Hospital were abundant proof that the operation on Mrs. Johnson had been performed with instruments for the purpose of effecting an abortion not necessary to save the victim's life. People v. Ramsey, supra; People v. Emery, 79 Cal.App.2d 226, 232, 179 P.2d 843; People v. Thompson, 69 Cal.App.2d 80, 85, 158 P.2d 213.

Instrumentation Proved.

Deceased had never been ill except at childbirth. She visited appellant's office twice without assistance. Her illness on emerging from his office on December 29 to such extent as to require taxicab transportation lays the instrumentation of her organs at appellant's door. Moreover, appellant told the husband that he opened the wife's womb and a clot was on top of it. Possession of surgical instruments by a chiropractor is proof that he had the means to perform an abortion, People v. Watanebe, 91 Cal.App. 290, 293, 266 P. 1000, and was a circumstance to be considered as proof that appellant had committed the crime, People v. Marineau, 55 Cal.App.2d 893, 907, 132 P.2d 22, even though their actual use had not been proved. As a chiropractor he could not legally use such instruments in a manner that would cause an abortion.

Conviction For Manslaughter Was Justified.

Appellant contends that his conviction of manslaughter upon evidence that he committed a nontheraputic abortion is not supported in law. His argument in effect is that (1) deceased was in good health until December 29, the date of the fateful operation; (2) if he aborted a healthy woman and caused her death he was guilty of murder and (3) a conviction for manslaughter was therefore not authorized. The facts established are that Birda Mae Johnson's death was caused by unlawful means, to wit, a criminal abortion. Her dying declaration and the evidence of the criminal abortion would, uncontradicted and unexplained, have established the corpus delicti of murder. People v. Coltrin, 5 Cal.2d 649, 660, 55 P.2d 1161; People v. Darrow, 212 Cal. 167, 183, 298 P. 1. Had there been no other evidence the court would have been required to convict appellant of murder in the second degree under the second count. But appellant not only denied that he aborted deceased, but he testified that he treated her for a diseased condition. If he established to the satisfaction of the trier of fact that he had done a lawful act, but without due caution, he could have been convicted of nothing more than involuntary manslaughter. Penal Code, sec. 192, subd. 2; People v. Wright, 167 Cal. 1, 6, 138 P. 349. The court having found in some respects in accordance with his testimony and having in pursuance thereof fixed his crime at manslaughter he is in no position now to complain that the judgment was less severe than the People's evidence would have warranted.

In support of his contention that he was guilty of second degree murder or not at all, appellant cites People v. Coltrin, supra; People v. Huntington, 138 Cal. 261, 70 P. 284; Huntington v. Superior Court, 5 Cal.App. 288, 90 P. 141; People v. Huntington, 8 Cal.App. 612, 97 P. 760; People v. Long, 15 Cal.2d 590, 103 P.2d 969; People v. Mount, 93 Cal.App. 81, 269 P. 177; People v. Wright, supra, and People v. Kelley, 24 Cal.App. 54, 140 P. 302. An inspection of such decisions will disclose that they are not apropos. A reading of all three of the Huntington decisions together will satisfy a partisan that they hold nothing contrary to the conclusions herein announced. By the third case, 8 Cal.App. 612, 97 P. 763, in affirming a conviction for manslaughter the court held that “under a charge of murder by attempting to procure an abortion, a verdict of manslaughter may be returned”. In People v. Mount, on appeal from a conviction of a chiropractor for manslaughter under an accusation of murder, the argument was made that error was committed by instructing on manslaughter since the prosecution's theory was that the woman had died from an abortion performed by the defendant and therefore there was no issue that necessitated the manslaughter instruction. Such contention was rejected with the pronouncement that since the evidence showed that the defendant had used instruments in the treatment of his patient which his chiropractic license did not authorize, that fact alone constituted negligence arising from two facts, namely, (1) the chiropractor's use of instruments is not authorized by his license; (2) expert proof that the conditions which caused the patient's death were induced by the careless and incompetent treatment administered by the defendant. The same finding of appellant's having acted without due caution and circumspection was presumptively made by the court in the instant action. Likewise, in People v. Long, supra, a conviction for manslaughter was affirmed. Although the defendant was accused of murder and evidence thereof was introduced, a judgment of manslaughter was affirmed because there was evidence that the defendant did not exercise due care and circumspection in caring for the patient.

The law controlling the instant action is clear, namely: when a person does a lawful act in an unlawful manner or without due circumspection and his act produces death, he is guilty of manslaughter. Penal Code, sec. 20; sec. 7, subd. 2; sec. 192, subd. 2. If in doing an act dangerous in itself the actor does not take such precautions as a person of ordinary prudence would have exercised under the circumstances and death results to the person acted upon, such actor is guilty of manslaughter even though his negligence does not show a wanton or reckless disregard of human life. People v. Pociask, 14 Cal.2d 679, 684, 96 P.2d 788.

No Error In Allowing Johnson To Testify As To Condition Of His Wife.

Having already testified without objection that he knew of his own knowledge that his wife had missed her menstrual period in October, it was not error to allow Johnson to testify as to her statements of her condition. Her declarations to him that she was pregnant were competent proof of her condition and of her purpose in visiting appellant's office. People v. Wright, 167 Cal. 1, 8, 138 P. 349; People v. Berg, 96 Cal.App. 430, 441, 274 P. 433; People v. Thomas, 51 Cal.App. 731, 735, 197 P. 677; People v. Northcott, 45 Cal.App. 706, 712, 189 P. 704. People v. Emery, 79 Cal.App.2d 226, 179 P.2d 843, 846, is cited as holding that a woman's declaration of her pregnancy is inadmissible to establish her condition. The prosecutrix there was the only person to testify as to her condition at the time of her visit to appellant, Dr. Collins. Emery who had previously lived with the young woman testified that he and the prosecutrix had gone to Collins' office “for an operation for abortion”; that he paid the fee, saw the girl lie upon the table and kept her quiet while Dr. Collins operated. That decision contains nothing contrary to the doctrine announced by the Wright case.

No Error in Admitting the Testimony of the Physicians.

Appellant contends that the testimony of the physicians was illegal in that it was based solely upon information supplied by his accomplice or another person outside the presence of appellant. Such is not exactly the fact. All the expert testimony was based upon case history and physical and laboratory examinations. Opinion evidence by expert witnesses based on case history is admissible in prosecution for abortion, and inferences of guilt may reasonably be drawn from the failure of the accused to keep written records. People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720. The experts in question are physicians who testified for the people pursuant to appellant's stipulation. On questions of science an expert may testify to his opinion if the inferences to be drawn by the jury are conclusions which depend upon the existence of facts which are peculiarly within the knowledge of men whose experience or study makes them authority upon the subject of their testimony. In such cases the conclusions to be drawn from the facts stated as well as the knowledge of the very facts disclosed by the testimony depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. There was no error in allowing the physicians to testify. Code Civ.Proc. sec. 1870, subd. 9; In re Estate of Toomes, 54 Cal. 509, 512, 35 Am.Rep. 83; People v. Tucker, 88 Cal.App.2d 333, 198 P.2d 941.

Appellant states that he was not allowed to “determine whether or not the conclusions of the autopsy surgeon were influenced by the history he had received” but was denied permission “to develop this subject.” Proof of such denial is not to be found in the record.

Appellant contends also that over his objection Dr. Donohue was permitted to testify that his diagnosis of Mrs. Johnson's condition was based upon the case histories supplied by appellant and Mr. and Mrs. Johnson. Not so. His testimony was that in making a diagnosis four or five factors must be considered. In addition to the case history, said he, the diagnostician must have laboratory findings and the results of a physical examination. In the case of Mrs. Johnson, Dr. Donohue found a pelvic peritonitis which is usually caused by a septic abortion. One fact he observed in his patient; the other he knew from his experience and learning.

Neither did Dr. Grant base his opinion upon the patient's history only. He found that the uterus had suffered instrumentation and that bruise or laceration of that organ was the source of the infection. He first saw her on January 13 when he examined her and read the hospital record for the case history and derived the opinion that she had suffered instrumentation of the uterus which was the cause of the infection. The testimony of all the physicians was based upon a knowledge of the factors suggested by Dr. Donohue as essential to a diagnosis.

The Hospital Records Were not Prejudicial.

Appellant stipulated that the records from the General Hospital pertained to decedent. No substantial point is made against their competency. The entries were routine and were made in the ordinary course of caring for the unfortunate woman. No objection of a lack of proper foundation was made. Such records are an exception to the hearsay rule. Code of Civ.Proc. secs. 1953e, 1953f; McDowd v. Pig'n Whistle, Corp., 26 Cal.2d 696, 700, 160 P.2d 797; Loper v. Morrison, 23 Cal.2d 600, 607, 145 P.2d 1; 14 So.Cal.Law Rev. 99. To be competent proof of what they contain, it is not essential that hospital records contain a case history of the patient. The court's statement that it would not consider any incompetent evidence found in the records may be assumed as final. Had any been found it must be presumed that appellant would have moved its exclusion. Such records are as truthful and reliable as those of any commercial firm, and their use as evidence avoids the necessity of calling each witness who had personal knowledge of the matters mentioned in the entries. Loper v. Morrison, supra, 23 Cal.2d at page 608, 145 P.2d 1.

No Error in Admitting Dying Declarations.

It is contended that appellant was prejudiced by the admission of Mrs. Johnson's dying declarations. At a conference of Officers Toole and Howsley with the sick woman at 4 a.m. on January 22 she told the officers she was going to die and that “Dr. Powell is the man that killed me”; that he had used an instrument to put packs in her. On the same day in appellant's presence she told officers that she was going to die; that “Dr. Powell is the man that killed me”; that on December 29 he “had put some packs in me with instruments.” An officer who was present at her bedside with appellant testified that she was conscious and recognized “the doctor.” Dr. Grant had told her on the same day that she was very ill and probably would not survive. It is the exclusive function of the trial judge to determine the sufficiency of the foundation proof offered as the basis for determining the admissibility of a dying declaration. The sense of impending death may be inferred from the circumstances of the declarant. People v. Pollock, 31 Cal.App.2d 747, 749, 89 P.2d 128; People v. Wilson, 54 Cal.App.2d 434, 441, 129 P.2d 149; People v. Ives, 17 Cal.2d 459, 478, 110 P.2d 408.

The decedent's statements were neither opinions nor conclusions, nor were they admitted as proof of the homicide. Their primary function was to prove her belief that she was conscious of her approaching dissolution, People v. Vukojevich, 25 Cal.App. 459, 462, 143 P. 1058, and that appellant was the author of her woes. She was not a witness but a human being who knew better than any other person whether appellant had operated on her. Her declarations to the officers that appellant had killed her was made under the shadow of impending death and its admission was therefore lawful. People v. Wilson, 54 Cal.App.2d 434, 441, 129 P.2d 149; People v. Mount, 93 Cal.App. 81, 85, 269 P. 177; People v. Gibson, 33 Cal.App. 459, 460, 166 P. 585.

The judgment and the order denying appellant's motion for a new trial are affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.