PEOPLE v. GALLARDO et al.
The four indictments adjudicated herein accused appellants Glynn and Gallardo of having performed unlawful abortions upon a number of women. No appeal was taken by any of the convicts except the two appellants. Two buildings sheltered the performance of the acts denounced as criminal abortions, namely the Southwest Hospital on Manchester Avenue and a medical building on Hoover Street. Both are situate in the suburbs of Los Angeles and only a short distance separates them. References will be made to the Palms Motel and the Tulips Motel. Both furnished convenience and rest, are near the medical building and were visited by a number of those who sought the services of appellants.
The indictments bore large numbers, each with six digits. They will be referred to in each instance by the last two digits—35, 87, 88 and 90. Indictment 35 contained twelve counts; indictment 87, four counts; 88, three counts; 90, three counts. The first count in each indictment alleged a felonious conspiracy of appellants and other persons for the purpose of aborting certain women. Each conspiracy charge was followed by allegations of specified overt acts committed in furtherance of the alleged conspiracy. The conspiracy counts in indictments 87, 88 and 90 were dismissed. But in accusation 35, it was not dismissed but was tried. However, no proof was offered as to three of the seven alleged overt acts; three were established. One was not tried. Verdicts were returned against appellants convicting them on all or some of the counts in each of the four indictments. Judgments were entered accordingly. After their motions for new trials had been denied, they lodged their appeals here demanding outright reversals of each judgment and order on the several grounds about to be discussed.
The Abortion Statute is Valid.
The statute under which appellants were accused is section 274 of the Penal Code1 . Appellants in effect contend that the care of one's corporeal tenement concerns no one but himself; that the forceful withdrawal of a fetus from the womb of a woman is a matter which should be governed by ‘natural law’ and not by an artificial statute rudely conceived by man for the purpose of interfering with and controlling the conduct of society and the individuals who compose it. Under American jurisprudence the State has but little to say as to the manner of a person's care of his body. He is restricted in his movements when stricken with a contagious or communicable disease. Otherwise, he is free to go unshaved, unshod or unbathed. In such matters his behavior is deemed not to affect the welfare of society. But as to the interference with a woman's natural process of procreation, the whole of society asserts a protest. The State confides to its legislature the power and discretion to enact statutes for the purpose of conserving the race even in the stream of gestation.
The realm of statecraft acknowledges no such thing as a ‘natural law.’ While certain proposed laws have been in the midst of crises so designated, such terms were then plausibly applied in the orator's zeal to achieve his aim of enacting a law which he deemed sacred. Indeed, the principles embodied in the Bill of Rights are so allied to the happiness and freedom of people as to persuade many men to believe they were the direct gift of the Deity. Not so. They are the products of the human brain after a long travail of freedom. Had they not been conceived we would still have had a social order, a state.
A people is not restricted in the establishment of rules and laws for the welfare of the mass to any greater extent than in legislating for the individual. When they impose limitations upon society for the general welfare their acts are not to be thwarted by those rebellious agencies who deny the existence of the right of the people to regulate and govern themselves. The state is the paramount creation of man. It derives from the family. The evolutionary processes by which it evolved afford no basis for discount of the power and the obligation of the modern state to discipline, preserve and perpetuate the race. It has supplanted the tribe and the clan and succeeded to all the privileges and duties of the family. Either through a monarch, a dictator or a legislature, the modern state maintains the office of the patriarch who had succeeded to the functions of the primae val father to prescribe rules and to regulate and administer family affairs. Laws created by its lawmakers have the absolute control of society except to the extent abridged by its organic law.
Section 274 is such a statute. It was designed to stay the activities of meddling agencies bent upon disrupting the process of racial reproduction. Anderson v. Commonwealth, 190 Va. 665, 58 S.E.2d 72, 75, 16 A.L.R.2d 942; Dykes v. State, 30 Ala.App. 129, 1 So.2d 754, 757. The legislature is authorized to adopt laws in aid of public morals. 1 C.J.S., Abortion, § 44, p. 341. Especially should it by legislation prohibit the encouragement of the sales of commodities or services calculated and designed to interfere with the procreation of the species. See 1 Am.Jur., p. 133, sec. 6.
Appellants misconceive the purpose of section 274. It does not, in the slightest degree, deny a pregnant woman's right to receive appropriate medical service and to be relieved of a fetus if such relief is ‘necessary to preserve her life’. The statute does not say or imply that the relief may be effected only where the danger is immediate. It is predicated upon the concept that the body of a woman is a holy temple and that one who desecrates it with instrumentalities or medicaments with intent to cause a miscarriage is a felon. It cannot fairly be said that such a statute is an unreasonable interference with one's guaranteed freedom. It protects the frantic woman from the butcheries of incompetent barbarians as well as from the skilled surgeon of undeveloped morality. The fact that the statute allows the abortion when essential to the preservation of life and denies it to pregnant women who are not so afflicted is not good cause for declaring the statute discriminatory or unreasonable. The classifications indicated relate substantially to a legitimate object, to wit, to save the lives of incipient embryos or fully formed fetuses, that is to forward the propagation of the race. The statute is general in its application and uniformly applies to all gravid women. If they enjoy good health, the abortionist is frustrated. If their lives are in peril by virtue of the pregnancy, the surgeon is free to act to save the life of her who is so endangered. In making such a law the legislature may take into account degrees of harm and restrict those classes of cases in which the need is clearest. Lelande v. Lowery, 26 Cal.2d 224, 232, 157 P.2d 639, 175 A.L.R. 1109.
In support of their contention that section 274 is unconstitutional in that it is an unreasonable deprivation of a pregnant woman's ‘personal right’ to be aborted, appellants cite In re Sumida, 177 Cal. 388, 170 P. 823, and Application of Miller, 162 Cal. 687, 124 P. 427. Neither is pertinent. The Sumida case holds merely that it is a legitimate exercise of the police power where a regulatory statute is nondiscriminatory as to all within a single classification so long as such classification is based upon either ‘some natural, intrinsic, or constitutional distinction between the persons composing it and others not embraced in it.’ [177 Cal. 388, 170 P. 825.] The Miller decision upholds the validity of an act forbidding the employment of women in certain occupations for more than eight hours a day or more than 48 hours in one week. While it does repeat a cherished principle, to wit, that the police powers of the legislature are not absolute, and personal rights may not be taken away at the whim or caprice of the lawmakers, it is equally as emphatic that individual liberty may be abridged to benefit the public welfare.
The cited authorities do not avail appellants. In enacting section 274 the legislature has made a reasonable finding that the permitting of unrestricted abortion practices is contrary to the public welfare. Its decision that the procreation of the race must not be interfered with except upon the one specified condition cannot be deemed unfair or unreasonable. The progenitors of mankind from the birth of the first of the species to the current generation cry out to the remotest posterity to allow and encourage the normal, instinctive racial processes to unfold as ordained in the heart of nature.
Also, appellants cite Ex parte Whitwell, 98 Cal. 73, 32 P. 870, 19 L.R.A. 727. It held invalid a statute regulating the construction and location as well as the operation of hospitals for the insane. The court held certain restrictions such as (1) that the asylums be constructed only of stone, brick or iron and (2) that they be not located within 400 yards of any dwelling or school building to be ‘arbitrary and wholly unreasonable.’ Such matters bear no relation to the problem of race survival. The practice of medicine and surgery, perhaps more so than any other profession, is peculiarly the subject of legislative control. It directly concerns not only the public health, Fuller v. Board of Medical Examiners, 14 Cal.App.2d 734, 741, 59 P.2d 171, but also race survival. While there may be occasions when a surgeon would in the prudent practice of his profession desire to perform an abortion even though the patient's life were not necessarily in danger, yet such fact alone cannot be said to cause section 274 to be deemed void as an unreasonable restraint on the constitutional right to practice medicine. The legislature has in effect weighed the interest of the medical profession in the unrestricted pursuit of the healing art against the interest of the state in the unhampered reproduction of the species. In striking the balance manifested by this statute, it cannot be said that it has erred to such extent as to require this court to declare such legislative conclusion to be unreasonable and the statute void as being in conflict with the organic law of California.
Numerous other authorities cited by appellants (including Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; In re Raleigh, 177 Cal. 746, 171 P. 950; Matter of Bohen, 115 Cal. 372, 47 P. 55, 36 L.R.A. 618, do not assist appellants on their constitutional argument. Such decisions stand only for settled principles of constitutional law.
There is no uncertainty as to the meaning of section 274. When its words and phrases are construed according to the context and approved usage, and technical words are given their peculiar meaning, Penal Code, sec. 7, subd. 16, the statute is found to be a plain and simple inhibition against the specified act and any person of common intelligence can understand it. People v. Rankin, 10 Cal.2d 198, 202, 74 P.2d 71. For a statute to be so certain as to be operative, it requires only such diction as is sufficiently well known to enable those who are affected thereby to understand and apply its provisions. Lorenson v. Superior Court, 35 Cal.2d 49, 60, 216 P.2d 859.
The Evidence is Sufficient.
Inasmuch as all four indictments were consolidated for trial they are all considered as a single group of offenses on appeal. However, it will be borne in mind that there was but one conviction for conspiracy, to wit, count I of 35. Included with appellants in that conspiracy were defendants Amos and Zipse. Since their participation has been disposed of they will receive no further consideration. The task remaining with respect to the conspiracy is to show that the proof is substantial that appellants agreed to work with each other and with their codefendants in effectuating the purpose of the conspiracy. Such evidence is not far to seek in view of the ownership or management of the two buildings by Glynn; his constant, daily presence on the premises; his activities in communicating with women who sought relief under his shelter; his meeting them at the airport; his conducting them in secrecy to his hospital; his large fees collected in advance; his giving none of them a receipt; his payments of $200 to Dr. Gallardo for his surgical services and the doctor's prompt appearance on the arrival of a pregnant woman. Dr. Gallardo is in no better position than Glynn for it was his skillful hand in all instances that guided the instruments that relieved the women of their pregnancies. He was paid for all such services by Glynn who employed Miss Zipsie as their ready assistant at every undertaking.
On December 18, 1949, Miss Edith of Berkeley visited the Southwest Hospital after a telephonic conversation with Glynn and consultation with Dr. Elder in San Francisco. When she paid Glynn $600 she was in good health and her pregnancy four months advanced. That Gallardo performed the operation was established by her testimony that two days after the abortion Dr. Amos called with Gallardo and stated that the latter had performed the operation. After five days Edith left the infirmary relieved of her pregnancy with an additional surface scar over her pelvic region. Gallardo received $200 from Glynn.
Prior to May 16, 1949, Elice was told by Dr. Zorb that she was three months' pregnant. On that day, accompanied by her father, she called at the Southwest Hospital for the purpose of voiding her pregnancy. By Glynn the father was quoted the price of $500. After Dr. Gallardo had examined and found her to be in good health, he conferred with Glynn who feared that an abortion would imperil Elice's health. He suggested that in order to make it legal, they could remove the girl's appendix. The operation was performed on the day she entered. Later she saw the three-inch scar down the middle of her abdomen and was relieved of her gravid condition. The $500 fee was paid half in cash, half with the check of the father. Glynn paid Gallardo $200.
Jane sought relief at the Southwest Hospital on March 3, 1950. At a previous conference with Glynn, he fixed her fee at $500. Ninety minutes after her arrival, Dr. Gallardo arrived and with the aid of Dr. Amos and two nurses he diagnosed her and performed a Caesarian operation. Dr. Amos administered the anesthetic. She was 22 years of age, in excellent health. After recovering from the wound she found a half-moon scar above her symphysis pubis, five inches long, and she no longer suffered pregnancy. She paid Glynn $550, $200 of which Gallardo testified that he received.
Further corroboration of the conspiracy, if required, and of the overt acts alleged is found in the testimony of officer Jokisch who visited the medical building about 1 p. m. on March 31, 1950. After withdrawing for a conference with fellow officers, he returned to witness Glynn's departure followed by such officers to the Palms Motel. There Glynn conversed with Virginia who within a few minutes entered Southwest Hospital to be aborted. Officer Jokisch and his two aides returned to the medical building. In the forenoon of the same day Jokisch had given officer Meade $250 in marked bills and kept their serial numbers. Those bills were delivered by that officer to Glynn as compensation for an abortion to be performed upon Marie Wischman, a name assumed by police woman Short. Jokisch and his men forcibly entered the medical building about 1:45, took the marked money from Glynn, found Virginia, Ella and Mrs. Short waiting and Dr. Gallardo dressed in surgeon's smock retreating toward the back gate. He saw Patricia lying on a bed, crying, not fully dressed, a reddish brown stain on the back of her skirt. He took from Gallardo $1,178.87. He found officer Graff with Glynn in the ‘Doctor's Office.’ They took from Glynn $2310 in currency, bills of various denominations. Also, they took a black looseleaf notebook containing a list of patrons including the ladies present in the building. In addition, Jokisch took 25 surgical instruments and tables later introduced in evidence. At 10:45 p. m., he and other officers visited the Southwest Hospital with Glynn and Miss Zipse. He took the hospital books containing the records of patients Jean, Edith, Martha, Jane, Elice, Margaret, Berna, Eileen and Nancy. He took the checks of Elice, Edith, Jane and Martha. Three cards were found in Glynn's brief case.
The officers had conducted observations of the hospital from a vacant lot commencing about March 1. Officer Graff located his trailer about 320 feet from the hospital. He was accompanied by police woman Statzel. They observed the comings and goings of Glynn. On March 17 Graff followed Glynn to Gallardo's ‘Santo Nino’ clinic on Whittier boulevard at Breed street. At 1 p. m. on March 31, 1950, Graff approached the medical building with officer Statzel. They observed Glynn's Cadillac and two other automobiles nearby. Glynn and two women crossed the street and proceeded up an alley to the rear of the building. As Graff entered the alley he was confronted with Gallardo's blue Cadillac and Glynn who was then arrested. Graff took from him a crumpled paper bearing the names of Berna, Eileen and Nancy. He escorted Glynn into the building and went at once to Miss Zipse's apartment. After some conversation he induced that lady to disclose the whereabouts of the instruments she had brought from the operating rooms, to wit, hypo-syringe and needle, four sponge forceps, two curettes, one sound and four dilators.
Later in the day Graff visited with Gallardo in the ‘Examining Room’ where without any questions the doctor stated: ‘You know I wasn't as frank with those men in there as I might have been * * * there is a lot I could have told them that I didn't think it was right to tell them, and I don't intend to * * * I should never have come here at all * * * I have tried many times to withdraw from this association * * * it goes back a long way * * * I talked with Henry Glynn about it, and we got together and this is the result of that.’
In the early days of Graff's observations, officer Lane assisted. On March 9, 1950, he witnessed the arrival of Mrs. Berna at the Southwest Hospital at 8:20 a. m. She entered Glynn's office with him. She left at 9:15 and returned at 11:47 with an overnight bag. She accompanied Glynn into his office, thence into the hospital at 4:00 p. m. On March 31, 1950, at 7:46 a. m. Lane observed Glynn leave the medical building, enter his Cadillac and depart. At 9:07 he saw Gallardo park on 81st street, return to and enter the medical building.
The foregoing evidence is substantial. It shows appellants to have worked in unison under a plan and agreement to commit abortions upon the women mentioned. Indeed, from such activities as disclosed by the officers, it should require but scant proof of an abortion operation to convince an impartial juror that appellants were engaged in the business of performing abortions. But appellants contend that an abortee is an accomplice, Penal Code, sec. 1111, and that her testimony alone is not competent to prove the crime. Even though she were an accomplice, the evidence above detailed is sufficient corroboration. It places appellants in the lair where they daily met women in search of the abortionist's services; shows them in the company of the women who were served; proves their acceptance of the rewards for such operations and a generous supply of weapons used to practice the abortionist's craft.
When corroborating evidence creates more than a suspicion of guilt of the actor, it is sufficient although considered alone it is entitled to but slight consideration. People v. Wilson, 25 Cal.2d 341, 346, 347, 153 P.2d 720. The requirement for the abortee's testimony to be corroborated, see Penal Code, sec. 11082 is fully met by the facts last enumerated and by the testimony of the officers and the inferences to be drawn from the testimony of Gallardo and his statement to officer Graff. Ibid.; People v. Dorrance, 65 Cal.App.2d 125, 130, 150 P.2d 10. But the abortee is not an accomplice within the meaning of section 1111, supra. People v. Clapp, 24 Cal.2d 835, 839, 151 P.2d 237. An accomplice is ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ People v. Stone, 89 Cal.App.2d 853, 869, 202 P.2d 333, 342. The abortee is guilty of a different offense. Penal Code, sec. 275.
If the testimony of all the abortees named in the two indictments should be eliminated the residue would be sufficiently inculpatory and therefore is corroborative. Such evidence is sufficient if it so connects the defendant with the crime as reasonably to satisfy the jury that the abortee has told the truth. People v. Allen, 104 Cal.App.2d 402, 413, 231 P.2d 896; People v. Griffin, 98 Cal.App.2d 1, 23–28, 219 P.2d 519. It is not essential to the competency of corroborative evidence that standing alone it prove the guilt of the accused. People v. Allen, supra. As to the conspiracy, the facts in evidence are sufficient proof. Conspiracies are commonly formed in the dark or behind closed doors. They are usually proved by circumstantial evidence only. Many a prisoner has reflected upon the tragic irony that though he had not spoken a word at the commencement of his venture, the threads of his behavior had been knitted into a perfect pattern of a dark conspiracy to defeat the law. Where a physician's medical building or hospital equipped with a number of sets of three or four surgical instruments of the same design commonly used for curettements and abortions, sundry anesthetics, and tables with stirrups for use in examining and operating upon women; when the accused doctor and his associate communicate by long-distance telephones with women who are in good health residing in remote cities whose own physicians have referred them to the two men under investigation; and when the latter subsequently receive such women at a medical building and keep them for brief periods; and when the two men are for an extended period observed contemporaneously to be congenially co-operating about such building or hospital—such facts with proof of overt acts may be properly found sufficient proof of a conspiracy, see People v. Steccone, 36 Cal.2d 234, 239, 223 P.2d 17 to engage in unlawful acts.
Appellants deem themselves to be aggrieved because of their belief that the contradictory testimony of Dr. Gallardo acquits them. Their feelings would be justified if the doctor's testimony stood alone or if the jury had adopted it. But they are impotent to bestow veracity upon their own testimony after the fact finders have rejected it as untrue. Since it was discredited by the constitutional triers of the facts, it has passed into limbo and cannot be considered by the reviewing court. People v. Allen, supra, 104 Cal.App.2d at page 414, 231 P.2d 896. It is as dead as the ashes of ancient Troy. Not only does the evidence prove the conspiracy of appellants alleged in count I of indictment 35, but it proves the performance of criminal abortions upon the women named in the allegations of overt acts and upon the other women named in the indictments. The proof of the conspiracy is supplemented by the evidence received in support of the other three indictments. People v. Allen, supra, 104 Cal.App.2d at page 411, 231 P.2d 896. In considering them it should be borne in mind that Mr. Glynn was not a physician. Evidently he had engaged in the business of providing facilities for the practice of the abortionist as a game for profit. From Glynn's silence, and the locations and appearances of his two successful institutions, the jury were justified in drawing inferences unfavorable to him.
The Enterprise was Profitable.
Miss Jean of Berkeley, in good health, entered the Southwest Hospital November 14, 1949. (Count II, 35.) She had one child twenty months old. When Glynn observed her youthful years he required her mother to come to consent to an operation. She paid Glynn $470 in travelers checks and $130 by her own check. Neither to her nor to any other abortee did Glynn given a receipt. The mother's signature on the hospital records was established. When the patient told Dr. Amos that she had undergone an appendectomy in 1946, he said: ‘For the records we will put down complications of appendix.’ Within 30 minutes after her examination, she underwent an operation. Thereafter Gallardo examined her. Later she found a 3 1/212 inch semi-circular scar above her pelvic region and was relieved of her pregnancy. She was referred to Glynn by the physician in Berkeley who found her pregnancy had advanced five months.
The evidentiary accounts of the operations by Gallardo upon Jean, Edith and Elice (Counts II, III and VI) have been given in the discussion of the conspiracy.
Jane (Count V, 35) was referred to Glynn by a physician of Long Beach. She was in excellent health but was three months' pregnant. Accompanied by her mother, she entered Southwest Hospital March 3, 1950. Her history was taken by Gallardo who arrived after the women. The mother witnesses the passing of money by Jane to Glynn who had told her the operation would cost $500. Gallardo testified Glynn gave him a personal check for $200. During the operation two nurses were present with Dr. Amos who administered the anesthetic. Gallardo testified he made the examination. Jane was 22; had undergone an appendectomy at 12 years leaving a vertical scar just below the navel. Gallardo's incision made a half-moon scar below the public hairline five inches long. The girl paid Glynn $550. She was relieved of her pregnancy.
Marjorie (Count VII) telephoned Glynn from Fresno in March, 1950. Pursuant to arrangements with him, she went to Los Angeles and stopped at the Coliseum Hotel, March 24, 1950. Two days later she was examined by Gallardo at an office distant from the hospital and medical building. She then paid Glynn $500 cash. She signed the admission sheet March 28 as she entered the hospital. Gallardo testified that he performed the surgery. On her return to Fresno she observed the horizontal scar on the hairline. It was her first incision. Her health had been good. Three weeks after the surgery her menstrual flow resumed. She had sought the operation in order to remove a fetus from her.
March 31, 1950, Nancy (Count X) met Glynn at the Palms Motel at 9 a. m. She brought $200 as he had required. She was in good health but believed she was pregnant. She followed him from the motel parking lot. He was accompanied by a large woman. They went in a zigzag fashion to the medical building. Nancy had few words with Glynn after following him in. She signed the admission sheet and paid Glynn the $200. Miss Zipse directed her to the operating room where fully dressed she lay upon a table with feet in the stirrups. A doctor entered, gave Nancy an injection in her vagina. She felt nothing more than the sting of the needle. Gallardo testified that he saw Nancy on March 31 and performed a physical examination. On leaving the table she had a discharge of blood from her vagina. The nurse gave her a shot, and provided her with a suppository. She made the visit to effect an abortion. Thereafter her menstrual flow returned. She had had an operation for the same purpose six months previously.
March 8, 1950, Jane No. 2 (Count XI–35) went from Fresno to Los Angeles. Officer Lane saw her arrive with Glynn at the Southwest Hospital on the 9th. She gave Glynn $300 cash as he directed her to a room. Zipse assisted her onto the surgical table. Gallardo stood in a position whereby he was able to operate upon her genital organs. She suffered an unpleasant sensation, something inserted. Gallardo testified that he inserted a vaginal speculum. The nurse gave her pills and suppositories to be used as directed. The girl left at 4:30 p. m. and returned to Fresno. Before going to the hospital she was in good health, but believed she was pregnant.
March 31, 1950, a friend of Virginia (Count XII) telephoned Glynn to ask if he would afford a curettement for a young matron. He promised it would be done for $250. On that day Virginia and her husband, pursuant to instructions, met Glynn at the Palms Motel. At the same time Ella and her husband were there. The two couples accompanied Glynn to a point on Hoover street and all parked near a church. He escorted the two women into the rear entrance of the medical building where policewoman Short was waiting. Virginia paid Glynn $250. She had two children, was in good health but believing she was pregnant had come to Glynn to be aborted. She saw Dr. Gallardo in a white surgeon's coat as the police broke in. He ran out to the rear. She saw him throw some object into the washroom. She looked in and saw the instrument on the floor. She saw Patricia whose slip was bloody.
Indictment No. 87
Patricia entered the medical building about 1:00 p. m. March 31, 1950. On being admitted by a woman, she talked with Glynn to whom she paid $225 as she signed her admission card. She was directed by Zipse to the operating room where she was told to remove her underclothing and lie upon the operating table. Gallardo made a vaginal inspection and inserted a vaginal speculum and a uterine sound into the external os to hold down the cervix. Other instruments also were used. But just then Zipse cried, ‘Someone is coming,’ and the instrument was snatched away from the patient. As she left the table she was bleeding from her vagina. She crossed to another room from which she was soon conveyed to the Receiving Hospital. There the police surgeon found that her vulva was covered with blood, the cervix had been recently bruised and lacerated and blood was flowing. He opined that she was the victim of a probable attempt at abortion; a tenaculum could have made the bruises on the cervix which is immobilized by that instrument. Also, the trauma of the cervix could have been caused by the dilator. Both of the instruments with many others of similar character were taken from the offices of appellants.
Ella had been pregnant six weeks when on March 27, 1950, she decided to have an abortion. Three days later she communicated with her physician, Dr. Kagan. On that day she received a telephonic call from Glynn who indicated a willingness to serve her for $250. As he directed, she met him at the Palms Motel about 1:20 p. m. March 31. Her drive to the medical building has been described in the narrative of Virginia's experience. She sat in the doctor's office near officer Short. After Glynn filled out her admission card she paid him $250 and remained in the room with Mrs. Short. As the police entered she saw Gallardo toss an object into a room as he ran toward the rear. This she later identified as a speculum. Before they left for the Receiving Hospital she saw Patricia.
Mrs. Short was a member of the police department of Los Angeles. Pretending to be pregnant she called upon Dr. Kagan March 23, 1950, and told him she had had a positive reply to a rabbit test. After writing her information on a folder, he absented himself from his office for five minutes and then announced that he had a doctor that would help her. After giving her ‘shots' for $30, he told her if they proved ineffectual he would refer her to a doctor who would abort her. He knew of a small hospital where she could receive the correct care at a price of $200 to $250. When she reported that the shots had failed to produce results, Kagan again commented upon the fine work done by the man to whom he had referred others and not to worry. He then gave her the card of the Southwest Hospital and told her to write the name of Mr. Glynn upon it and to ask for him as he was the owner, but not the doctor who did the surgery and whose name she would never know. He then attempted to reach Glynn by telephone but did not succeed. Thereafter Dr. Kagan informed Mrs. Short that he had conferred with the abortionist; that she would not be anesthetized but would get just a shot and a couple of pills; it would not hurt—a little cramping only. She should go to the medical building and ask for Glynn. She called at the time set for her appointment in company with officer Meade at 1:03 p. m. as Patricia left her car to enter the medical building. She was admitted by Zipse and was ushered into Glynn's office. He wrote the personal data on Mrs. Short's admission card and told her the charge would be $250. After Meade counted out the currency to Glynn, he was told to return for Mrs. Short at 2:30 on a side street. As she waited, Zipse reassured her that since she had given birth to a child, the operation would not be so bad. Gallardo arrived. Mrs. Short saw Zipse and Patricia enter the surgery room followed by Gallardo. Soon came the police and the breaking glass; Zipse ran into the hallway; as Gallardo ran from the washroom toward the rear, he threw an object to the floor. Mrs. Short entered the surgery room, saw Patricia clothed in a bloody slip climb off the operating table and lie down on a cot. Later she engaged Zipse in conversation with officers Jokisch and Burton participating.
Officer Meade took the $250 from Sergeant Jokisch. The latter had made a record of the serial numbers on the bills. As Mrs. Short was about to sign her admission card Zipse opened the door to ask her whether she had the money. When Mrs. Short replied that he (Meade) had it, Zipse said, ‘Come inside. I don't see why we have to do business with the men.’ Meade and Mrs. Short entered the room and engaged Glynn in conversation when she told him that she was Marie Wischman. To this Glynn responded: ‘Oh, you are Dr. Kagan's patient.’ Thereupon Mrs. Short gave her answers to Glynn and the money was passed as heretofore related. When Meade expressed his anxiety about ‘this girl’ Glynn replied, ‘Don't worry, don't worry. It is all right; it has worked plenty of times before.’
Meade left but returned as the officers broke in. Jokisch brought Glynn into the doctor's office and took the money from Glynn's pocket. The numbers on the bills taken were checked against the numbers on the list of bills Meade had given Glynn.
Indictment No. 88
Eileen, a young Chinese matron, lived in San Francisco. She wished to have an abortion. Accompanied by defendant Mrs. Schroeder, a physician, she arrived in Los Angeles, March 31, 1950, and went at once to the Palms Motel. At 9:30 a. m. Glynn called for her and conveyed her to the Southwest Hospital. She was sent by Zipse to the operating room where she found Dr. Gallardo. He examined her with a speculum as she lay upon the operating table. She bled from the vagina. Zipse gave her pills and a suppository to be used. She had paid Dr. Schroeder $450. Whether that money reached Glynn is not made clear. From his aggressiveness on other occasions, the jury might well have deduced that he took part of the money from Dr. Schroeder. But Gallardo testified that the value of the service he performed for the Chinese mother did not exceed $25. She was 23 years of age, had three children and enjoyed good health. Her regular physician had advised her that she was with child. That opinion was supported by her dizziness and vomiting sickness. She was relieved of her pregnancy by the hand of Gallardo.
Martha was three months pregnant, and also knew Mrs. Schroeder. On September 12, 1949, the two women left San Francisco and arrived in Los Angeles the following day. They stopped first at a motel and after the lapse of a few hours were driven to the Southwest Hospital. Martha registered with Glynn. She had paid Dr. Schroeder $450 on the way. Dr. Gallardo examined her and recommended surgery. That event occurred within nine hours after she registered. She was given a spinal anesthetic, was by Gallardo opened across the abdomen and taped. She remained there 36 days. Her scar was a crescent four inches long below the hairline. There was some difficulty, requiring a second incision during her detention. Relieved of her pregnancy, she returned home about October 19. After a physician found an enlarged mass in her pelvis, she flew back to Los Angeles, was met at the airport by Glynn and underwent a laparotomy by Gallardo. He told her that her appendix had been pretty bad. But prior to her first visit to the Southwest Hospital she had worked regularly, suffered no pain in her back, teeth or skin. Although Glynn paid Gallardo $200 for his service to Martha, the $450 was all that was ever paid by her.
Indictment No. 90
Berna (Count II), a healthy matron of the Bay City, had one child. Her doctor told her on March 12, 1950, that she was pregnant. She had been suffering from sick stomach and vomiting and had no menstrual flow. She met defendant Chelini on March 28 in Daly City. That lady told her she could arrange for an abortion at Los Angeles for $450 and all expenses. They met at the depot in San Francisco on March 30 and went to the southern metropolis. They stopped on the 31st at the Tulips Motel where the girl paid Mrs. Chelini $450. At 9 a. m. Glynn called and drove her to the medical building. After she registered with the assistance of Miss Zipse, she entered the operating room furnished with an operating table with stirrups, a sheet and lights. She was directed by the nurse to lie upon the table on her back, head low, legs in stirrups. Zipse stood by her head. Some person Berna could not see entered the room and inserted a sharp needle near the patient's vagina. She felt a piece of cold metal inserted but it caused no pain. While her private parts were exposed she felt the strange person between her legs. He left before she arose from the table. After Zipse helped her up, she remained in the waiting room five minutes when Glynn entered and took Berna back to the Tulips where Mrs. Chelini awaited their coming.
Prior to leaving San Francisco, Berna enjoyed fine health. As she was going home, nurse Zipse told her to wear a sanitary pad, gave her instructions for self-care and how to use the penicillin suppositories and tablets supplied her. Her menstrual flow was resumed. Dr. Gallardo testified that he entered the building at 9:07 a. m. on March 31, 1950; that he inserted a vaginal speculum in Berna and used a Hegar Sound to dilate her external os. He said he did not know whose patient she was, but his services were of the reasonable value of $25.
Orsolina Chelini (Counts II and III), gave testimony that duplicated that of Berna concerning all that occurred outside the medical building except the following: she paid Glynn $300 of the $450 she had received from Berna; she had brought another pregnant woman from the northern city in 1949 and paid Glynn $300 when he told her that if she purposed to profit by such transactions she would have to charge more; also, in February, 1950, she accompanied Frances from San Francisco and paid Glynn $300, left the girl at the Southwest Hospital while she waited at the Palms Motel; took her patient home on the following day.
Frances' First Visit and Abortion
Frances (Count III) first saw Glynn and Gallardo in August 1949. At that time she was in good health and lived in Daly City. She sought the services of Chelini for a second time in 1950. The latter then demanded $400 which was paid by check. Thereupon, Chelini employed defendant Schroeder to make the trip with Frances for $350. On arriving at Los Angeles the girl registered at the hospital with Miss Zipse. She was then pregnant, seven weeks. Gallardo was there in his white coat as she was placed on the table. She was not examined. Gallardo performed an operation. She felt instruments inserted into her vagina and a scraping. The performance finished, she went to bed. The next day she returned with Mrs. Schroeder to San Francisco, taking the pills and a suppository furnished by Zipse. She was no longer pregnant. She made that visit to the Southwest Hospital because of her belief that she was pregnant. Her pregnancy was relieved.
The foregoing is a summary of the evidence adopted by the jury on all four indictments. No plausible argument can be made that it is insufficient to support the verdicts. As heretofore demonstrated, the testimony of the abortee is sufficient if corroborated by evidence that tends to connect the accused with the crime. Who would say that the evidence received other than the testimony of the abortees here involved does not connect appellants with the crimes? The visits of the several women from San Francisco; their checks given in payment for the abortions; Glynn's meeting them at the airport or at one of the motels customarily used by him for contacting a patient; the observations by the police as early as March 3, 1950, of the movements of appellants, the arrivals and departures of the women who sought abortions, some for a day, some for less time, some for longer periods; the exorbitant fees collected for work whose value in some instances Gallardo testified was not 10 per cent of such sums. The testimony of Virginia, Ella, Mrs. Short, as to the occurrences in the Medical building when Gallardo was operating upon Patricia as Glynn sat in his office was inculpatory, if not conclusive. Not only did Gallardo's regular appearances at the hospital and the medical building constitute overt acts, People v. Stevens, 78 Cal.App. 395, 405, 248 P. 696 but he testified in the case of each woman of having made an ‘examination’ or an incision to correct some condition to which he gave a name. The overt act is corroborated when proof is made of the first or some subsequent step toward the consummation of the defendant's criminal scheme. People v. Gibson, 94 Cal.App.2d 468, 470, 210 P.2d 747.
The evidence in the record generously demonstrates that appellants had an intention to do either some acts of charity or some crimes. Certainly it was not an eleemosonary institution that they maintained. Their purpose was a question of fact for the jury and finding could be made from circumstances relevant to the issues. Slight acts in furtherance of one's criminal purpose are sufficient proof of an attempt to commit an abortion. People v. Gibson, supra, 94 Cal.App.2d page 476, 210 P.2d 747. Now that the jury has found the guilt of appellants and the trial court having approved of the verdicts, the judgments cannot be disturbed on appeal unless it can be held that the record shows that ‘sufficient facts could not have been found by the jury to warrant the inference of guilt.’ It must be clear that ‘upon no hypothesis whatever is there sufficient substantial evidence’ to support the judgment. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779.
Pregnancy is not Essential to a Conviction.
Appellants assert that a reversal is imperative because the court refused to give an instruction that ‘if you find that the woman was not pregnant with child at the time the alleged abortion was done, you must find the defendants not guilty’ etc.
Such instruction would have been error. The statute, sec. 274 makes guilty him who procures a woman to take a drug or employs upon her an instrument with intent thereby to procure the miscarriage of such woman. Such was the interpretation given by the court in People v. Crain, 102 Cal.App.2d 566, 568, 228 P.2d 307. The Supreme Court refused a hearing. The same holding is found in People v. Pollum, 97 Cal.App.2d 173, 177, 217 P.2d 463; People v. Ramsey, 83 Cal.App.2d 707, 717, 189 P.2d 802. In the latter case we cited other decisions to the same effect.
No Abortion Necessary to Save Life
It is contended that no competent evidence was introduced to prove that the abortions were not necessary to preserve the life of the woman aborted. They argue that the only evidence upon the subject is the answers of the women that they were in good health. That is evidence. The testimony of the several abortees, the detailed circumstances of their behavior and the conduct of appellants are sufficient proof that there was no operation performed by appellants for the purpose of saving life. People v. Ramsey, 83 Cal.App.2d at page 718, 189 P.2d 802; People v. Malone, 82 Cal.App.2d 54, 58, 185 P.2d 870.
No Errors in Refusing Instructions
Appellants list the instructions3 given on the subject of corroboration with the complaint that the court should have told the jury outright that all abortees were accomplices. Such contention is not supported. The law of this state was followed by the court below. Its instructions given and its refusal to give others are supported by People v. Clapp, 24 Cal.2d 835, 839, 151 P.2d 237; People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; People v. Allen, 104 Cal.App.2d 402, 413, 231 P.2d 896; People v. Stone, 89 Cal.App.2d 853, 868, 202 P.2d 333. They say they were prejudiced by the instruction that under the evidence and as a matter of law the witness Orsolina Chelini was an accomplice. Nothing in that instruction could have misguided the jury. But if the court's naming that witness as an accomplice could have inflated the importance of the lady in the jury's estimation, it was promptly deflated by the very next instruction which declared that ‘the testimony of an accomplice ought to be viewed with distrust.’ Mrs. Chelini was not in the same class with the abortees. Not only did she accompany Berna to Los Angeles for the purpose of having her aborted, but she paid Glynn $300 out of the $450 she had received for his work. All her acts showed her intention to ‘facilitate the commission of the crime.’ The last cited authorities make it emphatic that an abortee is not an accomplice.
Appellants assign as error the court's refusal to instruct (1) as to the responsibility of a physician to his patient and (2) as to the meaning of the clause, to wit, unless the same is necessary to preserve her life. They urge that the rejection of Glynn's proffered instructions numbers 9, 2 and 5 prejudiced their cause. In instructions given the court set forth the substance of each count and stated the law as declared in Penal Code, section 274. Such instructions covered the law contained in Glynn's proposed instruction which added many things not required. He would have had the court instruct that the State is required to prove also that the use of the instruments and said miscarriage were not necessary to preserve the life of the woman; that ‘if you find that Dr. Gallardo or such other licensed * * * surgeon in good faith believed that such miscarriage was necessary to save the life of the woman and formed such opinion in good faith * * * and acted upon such opinion, then’ he was entitled to the presumption of correct judgment and good faith. For additional reasons the instruction was erroneous. Glynn was not a surgeon. Gallardo testified that only one of the women he cared for was pregnant and as to her he reached no definite diagnosis; that he did not perform a single therapeutic abortion. In that state of the record, the quoted rejected instruction would have been error.
Likewise it would have been error to instruct that the State must prove that Gallardo used instruments with intent to procure a miscarriage and that it ‘was not necessary to preserve her life’; that it is not necessary for the woman to be in actual danger of death, that the defendant may act upon appearances that arouse in the mind of a reasonable person the belief that the woman is about to die or suffer great bodily harm. Such instruction would have been erroneous. Appellants made no attempt to prove that they operated upon any woman in the belief that she was about to die, or that she was seriously endangered. Also, the law does not authorize an abortion to prevent harm or suffering. The proof in every case was that the woman was in good health.
Glynn's contention that the court should have given his instruction on the meaning of the clause, to wit, ‘unless the same is necessary to preserve her life,’ sec. 274 is without support. The instructions (Glynn's 5 and 8) do not define the quoted clause. They are mere arguments. Inasmuch as the women all testified without contradiction that they were in good health at the time of their operations, a definition of the quoted words could have availed nothing. When a healthy woman submits to the surgery of the abortionist, her good health is sufficient proof that the employment of his instruments was not necessary to prevent her death. People v. Malone, 82 Cal.App.2d 54, 58, 185 P.2d 870.
While Berna was testifying, she was asked to repeat her conversation with Mrs. Chelini at Daly City. She had asked Mrs. Chelini if she could arrange to have an abortion for the witness. Upon objection the prosecution promised to ‘connect it up.’ The conversation and their trip to Los Angeles, to the Tulips Motel, their conversation there alone and with Mr. Glynn, their drive to some street and entrance into ‘a building’ and other incidents were all related by Berna. Thereafter Mrs. Chelini having pleaded guilty to the indictment testified to all the facts covered by Berna.
The same objection was made to Mrs. Short's detailing her conversations with Dr. Kagan whom she had consulted with reference to her feigned pregnancy and his referral of Mrs. Short to Glynn. In neither instance was motion made to strike the testimony so objected to as hearsay. In such event, appellants are deemed to have waived their objections. People v. Benenato, 77 Cal.App.2d 350, 361, 175 P.2d 296.
Appellants on cross-examination developed from Marjorie that she had testified before the grand jury to the effect that she went to the Southwest Hospital to find out whether she was pregnant; that she did not know but assumed that she was pregnant; and that she went there for the purpose of terminating ‘this pregnancy assuming I was pregnant.’ On re-direct, the prosecution over appellants' objections directed her attention to a specified page of the transcript of the testimony before the grand jury where her own testimony was that when she returned to the hospital after having spoken to Dr. Gallardo her purpose was to have her pregnancy terminated. Appellants say that the court's act in overruling their objections was arbitrary and ‘the grand jury testimony of this witness should not have been introduced in evidence as she was then present to testify.’ It is the ubiquitous rule on the trial of criminal actions that when a witness has on cross-examination been confronted with his testimony of a prior occasion the prosecution may on re-direct read or state to the witness the entirety of the former testimony. People v. Dye, 81 Cal.App.2d 952, 957, 185 P.2d 624.
Neither was the trial court arbitrary in sustaining the objection of the District Attorney to the argument of Glynn's counsel to the jury that the condition of Theresa and Marjorie was such that it was necessary to preserve the life of those women to have an operation. The ruling was correct. There was no evidence of a therapeutic operation on Marjorie. Theresa was a defense witness.
Appellants assign as prejudicial certain objections of the District Attorney to a question directed by Mr. Lane to Jane on cross-examination. The court sustained the objection and admonished the jury to disregard the offending statements. Such admonition is presumed to have been observed and the evil to have been thereby erased. People v. Harris, 219 Cal. 727, 732, 28 P.2d 906. The overruling of such objections are not such as to justify a reversal. People v. Sturman, 56 Cal.App.2d 173, 183, 132 P.2d 504.
Complaint is made of the court's ruling upon the defense objections to questions propounded to the witness Theresa who had been named as an abortee of appellants in Count IV of indictment 35 upon which count no evidence had been offered. Having been called by appellants to testify as to the manner in which she had been dealt with by the police, the District Attorney on cross-examination inquired whether she remembered the officers present at the meeting and the blonde girl with the stenotype machine. Over Glynn's objection that ‘the transcript ought to be produced here; has not yet been identified,’ the court allowed the District Attorney to read from a purported transcript of questions asked her and answers given at the City Hall conference. The answer ascribed to her by the document was to the effect that she asked his charges for an operation; that he named the price of $550 and she told him she would try to get it; that she tried to get it cheaper but could not.
Her answer was, ‘I don't remember if I gave those answers or they asked me those questions.’ She gave the same answer to other questions as to that conference. Glynn now assigns as prejudicial the ruling which permitted the prosecution to read from the report of the City Hall conversation on the ground that no proper foundation was laid and it was not identified. The objections were properly overruled. The writing was not signed by the witness. She effectually denied giving the answers ascribed to her and of course they could not be used to impeach her. The law is that the District Attorney may for impeachment purposes use a typed statement which has been taken by a shorthand reporter without allowing the defense to inspect it, even though it was never signed by the accused. Also, it is not error to direct the shorthand reporter to read from his notes the statement made by the witness. People v. Sherman, 97 Cal.App.2d 245, 254, 217 P.2d 715. It is never error to question a witness concerning prior inconsistent statements for the purpose of impeachment. Although a foundation was laid, it was not necessary. People v. Vollmann, 73 Cal.App.2d 769, 789, 167 P.2d 545. The witness' inability to remember the conversation at the City Hall was sufficient ground to use it for impeachment. People v. Bjornsen, 79 Cal.App.2d 519, 534, 180 P.2d 443.
Appellants called Mr. Lucas, deputy district attorney, to the stand to relate the conversation between Gallardo and the officers at the time of his arrest. Defense counsel asked Mr. Lucas to take the stenographic record of the conversation, refresh his memory and give the conversation ‘word for word.’ An objection to that question was sustained. The statement had already been used by the prosecution to impeach Gallardo. Glynn complains that since some of the witness' statement had been given he was entitled to all of it. The answer to such contention is that no part of the writing was introduced by the prosecution. Since the entire conversation had no relevancy to the point as to which Gallardo's credibility had been questioned the court properly denied appellants the privilege of inspecting the paper merely to increase their own information. See People v. McCoy, 25 Cal.2d 177–187, 153 P.2d 315; People v. Ratten, 39 Cal.App.2d 267, 271, 102 P.2d 1097; Code Civ.Proc., sec. 1854. The prosecution cannot be required to produce a typed report of a witness' statement where the witness had never agreed that such writing is a correct report of his oral statements. People v. Glaze, 139 Cal. 154, 157, 72 P. 965; People v. Sherman, 97 Cal.App.2d 245, 254, 217 P.2d 715; People v. Meadows, 108 Cal.App. 67, 69, 291 P. 226; People v. Coutcure, 171 Cal. 43, 48, 151 P. 659.
Policewoman Short had testified and been cross-examined. While on redirect she was shown a statement of Miss Zipse taken by a stenotype reporter in the evening following the arrest. Having testified to the names of the persons present, Mrs Short was asked to read the writing which purported to be the typed statement of the nurse and to tell whether it was a fair and accurate transcription of the questions asked of and answered by defendant Zipse. The witness having answered that it was an accurate transcription, appellants now assign as error the court's rulings, which allowed the answers, as ‘worse than secondary evidence’ and no explanation was made as to why the reporter was not produced.
The answer to appellants' contentions are: The questions and answers were admitted against Zipse only, as the jury were advised. Neither appellant may complain. People v. Centers, 56 Cal.App.2d 631, 634, 133 P.2d 29; People v. Bonner, 5 Cal.App.2d 623, 626, 43 P.2d 343. But even assuming appellants could raise the point, it is answered in People v. Zammora, 66 Cal.App.2d 166 at page 224, 152 P.2d 180, where a contention identical with that now made by appellants was denied.
While officer Meade was testifying on direct examination he was asked to produce the list of serial numbers he had taken from the currency given him by officer Jokisch, which money he had given Glynn in payment for the services to be rendered to Mrs. Short. To such question appellants objected on the ground that the court had refused to order the police department to produce certain records for the defense. There was no error in the court's ruling, when Meade testified that he had made a list of the serial numbers of the numerous bills of various denominations he answered that he had the list and it was necessary to refer to it to refresh his memory. Both Jokisch and Meade had made a list of the serial numbers. In proving the money paid to Glynn was the same money Jokisch had given him it was necessary to have Meade testify to the identity of the bills he gave Glynn with those he had received from Jokisch. No witness is required to scour his memory for numbers on back notes when he had the sense to make a memorandum of the numbers on such bills before they left his hand. Code Civ.Proc., sec. 2047. Meade was there for cross-examination if the defense questioned his accuracy.
Appellants assign as prejudicial the court's refusal to order Mrs. Short while on the stand to produce certain notes which she had made at the time of her visits to Dr. Kagan and which she read prior to testifying but had returned them to her purse where they remained. Inasmuch as she did not read from any notes to refresh her memory while giving her direct testimony the court was not required to order them to be produced. Section 2047 of the Code of Civil Procedure contains nothing to the contrary. Production of refresher notes is not required unless they have been actually used by the witness while testifying. 58 Am.Jur. p. 335, sec. 601 and authorities cited.
Appellants assert that they were prejudiced by the court's rulings in overruling their objections to testimony given by Berna, Frances, Jean and Martha. The evidence shows that they were each pregnant and gave certain defendants that information and their desire to be aborted. The testimony was competent and relevant in each instance to prove the conspiracy and the general objections thereto were properly overruled. The objection that it was received too soon is answered by the rule that the discretion of the trial court in regulating the order of proof is broad and will not be disturbed except where the showing is clear that such discretion has been abused. People v. Griffin, 98 Cal.App.2d 1, 48, 219 P.2d 519.
The judgment and the orders denying the motions for new trials are affirmed.
1. ‘Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than five years.’
2. ‘Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing, or taking away an unmarried female of previous chaste character, under the age of eighteen years, for the purpose of prostitution, or aiding or assisting therein, the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence.’
3. No. 593. ‘Corroboration Required by Law.’No. 592–D. ‘Corroboration Alone Not Sufficient.’No. 592–C. ‘Requirements of Corroborating Evidence.’No. 821. ‘Testimony of Accomplices Must the Corroborated.’No. 829. ‘Testimony of Accomplice to be Viewed With Distrust.’No. 830. ‘How to Determine Whether Corroborative Evidence Sufficient.’
MOORE, Presiding Justice.
FOX, J., concurs. McCOMB, J., concurs in the judgment.