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District Court of Appeal, Second District, Division 1, California.


Cr. 5115.

Decided: May 10, 1954

John H. Marshall, Richard E. Erwin, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondents.

This is an appeal from the judgment and order denying motion for a new trial.

Defendant was charged by information with the crime of abortion. Penal Code, Section 274. Four counts were alleged. The jury returned a verdict of guilty on two counts and not guilty on two counts. A motion for a new trial was denied.

It is contended on appeal that:

‘Point I. The court, in denying defendant's motion for a continuance, deprived the defendant of his right to aid of counsel and the process of the court in his defense as guaranteed by the state and federal constitutions, and in so doing violated the due process of law clause of the 14th Amendment of the Federal Constitution and Article I, Section 13 of the Constitution of the State of California.’

‘Point II. The trial court erred in admitting the testimony of an alleged ‘Tacit’ admission of the defendant. Over objection.'

‘Point III. The trial court erred in failing to instruct the jury, as a matter of law, that certain witnesses were ‘accomplices'.’

‘Point IV. The trial court erred in failing to instruct the jury in the language of Penal Code Section 1111.’

The alleged victims were Susan Ippolito and Mrs. Louella May Coon. The former testified that, ‘she had missed one of her menstrual periods' and the latter testified that, ‘she believed herself to be pregnant’ and, that following the examination by defendant, ‘That the defendant told her she was not pregnant’.

Defendant testified, ‘That he recalled seeing Mrs. Coon in his office on or about March 3, 1953; that she believed she was pregnant; that it did not seem she could be, it was too early to diagnose; that he examined her and followed his usual procedure; that she complained of pain and he suggested that she wait with the examination; that she said she wanted to get it over with; that he made the examination and told her there was no evidence of pregnancy; that he thought she returned later and he made a further examination and advised her he did not think she was pregnant’, and ‘that there was no evidence of pregnancy with reference to Miss Ippolito’.

With regard to the motion appellant argues ‘that at the time of defendant's arrest, without either a warrant for arrest, or a search warrant, the arresting officers took from the home of the defendant three books containing information and data necessary to the defendant in the preparation of his defense. That counsel for defendant had several weeks before the time of trial, requested permission on Mr. Carr, Deputy District Attorney, to examine the books, but that permission was denied because they were in the possession of the arresting officers.’ The record reveals that defendant was denied an opportunity to examine the records until and during the trial. ‘The second gounds for continuance urged by the defendant was he was not ready for trial because his counsel had only recently suffered a serious injury to his right leg, was appearing in court on crutches with his leg in a cast, and because of his injuries, had been unable to prepare the case for trial.

‘The third ground for continuance urged by the defendant was that under the circumstances, the defendant had not had sufficient time to prepare for the defense of the case. This ground was based on the fact that the defendant's plea of not guilty was entered June 22, 1953, and the trial was set for July 15, 1953, giving the defendant only about three weeks in which to prepare.

‘Upon the denial of the motion for a continuance, counsel stated that he was not ready, and could not proceed, and asked to be relieved as counsel in the case.’

With regard to the second contention, it appears from the record that the trial judge overruled an objection to the admission of evidence of a conversation between the officers and the defendant at the time of the arrest. At the time of the objection the prosecuting attorney argued:

‘Mr. Carr: Well, if the Court please, we propose to show that the witness showed these various items that have been identified in Exhibit 19, to the defendant and he stated in substance or effect that he, the defendant, has been arrested for performing abortions, wanted to give him an opportunity to make any explanation he wanted to about the things that they found on his premises, that is the instruments and book and so on and so forth. The defendant stated that he didn't think he wanted to make any explanation, that he didn't think it would do him any good. The officer asked him if he didn't want to discuss it at all and he said no. Then the officer showed him this book, which is 19 for identification, at which time the officer made the statement in substance as follows: ‘I wish to make the formal statement to you, Doctor, I maintain this is a book which is a record kept by you of the persons who have been aborted by you, and with notations indicating the name of the person, the date and time, the amount of money paid to you by them for abortions.’ And he then went on to enumerate certain things found in the book, at the conclusion of which the defendant merely made the statement ‘O.K.’.'

The ruling was prejudicial error. The expression ‘O.K.’ merely means all right. People v. Simmons, 28 Cal.2d 699, 172 P.2d 18; People v. Spencer, 78 Cal.App.2d 652, 178 P.2d 520.

With regard to appellant's third and fourth contentions, the failure of the court to instruct the jury on the law applicable to accomplices, respondent argues that, ‘Such an instruction was not requested’. And, that ‘We submit that there is ample evidence apart from the testimony of any accomplices to sustain the convictions, and that there is ample evidence apart from any accomplice-testimony to corroborate the complaining witnesses under Penal Code Section 1108.’ Both of these arguments are beside the issue. It is the trial judge's duty as a matter of law to instruct the jury in such circumstances even though such instruction is not requested. People v. Heddens, 12 Cal.App.2d 245, 55 P.2d 230; People v. Scofield, 203 Cal. 703, at page 709, 265 P. 914. Incidentally, the evidence of pregnancy is not conclusive and although the evidence as a whole is not overwhelming it may be, as a matter of law, sufficient.

Appellant's first contention above mentioned is by no means without merit but, inasmuch as the judgment must be reversed for other reasons, that question need not be determined.

The judgment and the order denying defendant's motion for a new trial are, and each is reversed, and the cause remanded for a new trial.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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