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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Starky HOLBROOK, Defendant and Appellant.

Cr. 5192.

Decided: February 01, 1955

Bodkin, Breslin & Luddy, and Henry G. Bodkin, Jr., Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., of the State of California, Clarence A. Linn, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., San Francisco, for respondent.

Defendant was charged in Count I of an information with the crime of abortion, committed on March 10, 1953. In Count II he was charged with the crime of attempted abortion, committed on March 26, 1953. Trial was by jury. After the evidence on behalf of the People and the defendant had been received, counsel for defendant made a motion for a ‘directed verdict of not guilty’ as to Count II on the ground of insufficiency of the evidence, which motion was denied. Defendant was found guilty as charged in each count. He made a motion for a new trial which was denied as to Count I and granted as to Count II. On motion of the district attorney Count II was then dismissed. Probation was granted. Defendant appeals from the judgment and the order denying his motion for a new trial as to Count I.

Appellant contends that the court erred in failing to advise the jury to acquit the appellant as to Count II, and in failing to instruct the jury that evidence relating to the offense charged in Count II could not be considered in arriving at a verdict as to Count I.

Defendant was a licensed chiropractor in Los Angeles. Miss Solis, the person upon whom the abortion referred to in Count I was allegedly committed, was unmarried and living with one Goldstein. On March 8, 1953, Goldstein telephoned defendant's office and made an appointment for defendant to see Miss Solis the next day.

Miss Solis, a witness called by the People, testified that on March 9, 1953, she and Goldstein went to defendant's office. She told defendant that she thought she was pregnant, that she had missed two menstrual periods. Goldstein asked defendant how much he charged for an abortion and defendant said $150. Goldstein said that all he had was $50. Defendant said that was not enough and told them to come back later. Defendant then told Goldstein to go into the reception room. He examined Miss Solis while she was lying on a table, and told her that he was sure she was pregnant, and that she had a little infection. He treated the infection by inserting some gauze and medicine. The next night she and Goldstein returned to defendant's office. Defendant told her to go into the operating room and undress, and he asked Goldstein if he had the money. Miss Solis went into the operating room. After removing her clothes and putting on a gown, which defendant gave her, she lay on the table. Defendant used forceps (speculum, Exhibit 1) and opened her womb. He said the infection had cleared. He then took a little bottle (Exhibit 3), which was about half full of liquid, and a long tube and syringe (Exhibit 4) out of the sterilizer. The syringe consisted of a rubber ball attached to a glass tube that was 4 inches long and on the end of which there was a ‘rubber.’ He then took a needle and ‘inserted’ some of the medicine into the tube. He put something else on the end of the tube and then inserted the tube in her vagina. She experienced no pain and she was on the table about ten minutes. Defendant told her that she would have her menstrual period within a few hours, and if she had any pain to stay in bed and to get in touch with him in a few days. She went home, and about two hours later she had very bad cramps in her stomach, and started menstruating. About two weeks later she became very sick and had a hemorrhage. She was taken to the General Hospital where she remained four days.

Goldstein, a witness called by the People, testified that when he and Miss Solis went to defendant's office on March 9, 1953, he told defendant they were there for an abortion and defendant said ‘the price would be $150.’ Goldstein replied that he had $50 with him. Defendant said that was not enough—that Goldstein had to pick up some more money. The next night he and Miss Solis went to defendant's office. He (Goldstein) told defendant that all he could pick up was $25, which made (a total of) $75, and that he could pay the balance to defendant the following month. Defendant said ‘O.K.’ He paid defendant $75 in cash and defendant did not give him a receipt. He (Goldstein) then went into the reception room, and Miss Solis remained in defendant's office about half an hour. On cross-examination, Goldstein testified that he did not remember what he said to defendant in defendant's office, but they ‘mentioned about the price’ to defendant.

Dr. Drake, a witness called by the People, testified that he is a resident obstetrician at the General Hospital. He first saw Miss Solis on March 22, the day after she was admitted to the hospital. He examined her and noted she was in the process of having a miscarriage, and he found evidence of infection of the uterus. In order to insert anything other than fluid in the os (opening of the uterus) it would have to be dilated. Any fluid which enters the uterine cavity could produce an abortion, depending upon several factors. If the syringe (Exhibit 4) were filled with fluid and if the rubber were in better condition, the fluid could be injected by applying pressure on the bulb of the syringe. In order to force the uterus to expel its contents it is necessary for the fluid to go inside the internal os. The syringe has a fairly strong bulb but he could not state whether it would be possible to push fluid with that bulb beyond the internal os.

Police Officer Galindo, a witness called by the People, testified that he obtained defendant's telephone number from Miss Solis. On March 26, 1953, about 11 a. m., he (officer) called that number and asked for defendant, and the person who answered said he was defendant. The officer then stated that he had been referred to defendant by Goldstein, that his (officer's) wife was pregnant, and that he had the same problem which Goldstein had. Defendant told him to come in at 1:30. The witness asked defendant how much it would cost and defendant stated ‘one and a half.’ He (officer) went to defendant's office with a policewoman, Josephine Collier, and introduced her to defendant as his wife. Defendant asked her how long she had been pregnant. He also asked them if they were in touch with Goldstein, and he stated that Goldstein owed him $75. Mrs. Collier said, ‘This is new to me,’ and ‘I wonder if you can explain to me what is going to happen?’ Defendant then said that he was going to treat her and that some 12 hours later she could expect to eject some blood. Defendant told the witness that the price was $150, that the witness should give defendant $140 and leave $10 with the receptionist who would give him a receipt for $10—the reason for this was that his help did not know that he was doing this kind of work. The witness asked when he should pay, the defendant said that he wanted to be paid then ‘because you know this is illegal.’ Mrs. Collier gave defendant five $10 bills and the witness gave defendant two $20 bills. The witness then left the room, signaled another officer, who was in an automobile, and they arrested defendant. The witness asked defendant for the money he had given him. Defendant handed him the money. One of the officers told defendant that there was a complaint about defendant treating Miss Solis, the person who owed him $75, and he asked defendant what he had done regarding her pregnancy. Defendant said that he had dilated her vagina and injected a mild astringent. The witness asked defendant to show them the instruments he used on Miss Solis and expected to use on Mrs. Collier. Defendant went to the sterilizer, pointed to Exhibits 1, 3, and 4, and stated that he filled the syringe with the liquid, dilated her vagina with the speculum, and injected the fluid into her uterus. He told them that the liquid was an astringent, and he also told them that it was distilled water. There were also three hypodermic needles (Exhibit 8) in the sterilizer, which defendant said he did not use.

Mrs. Collier, a witness called by the People, testified that defendant asked her how many periods she had missed. Defendant told them (witness and Galindo) that they were to pay him $140 then and pay $10 at the desk—none of his employees knew he was engaged in that type of work. He told her that he intended to use an astringent to cause the uterus to contract. He also told her that she should remove her clothing, and put on a gown, and he would give the treatment. She gave defendant five $20 bills and Galindo gave him two $20 bills. Galindo left the room. Defendant did not tell her that she was pregnant.

Another officer, a witness called by the People, testified that he went with Officers Galindo and Collier to defendant's office on March 26, 1953. After defendant was arrested he (witness) asked defendant if he had accepted money from Galindo, and defendant handed him seven $20 bills. The witness and Galindo checked the serial numbers on the bills with a list of serial numbers which they had. He then asked defendant if he was satisfied that the numbers (on the bills) corresponded with the list, and defendant said that he was satisfied. The witness asked defendant if that money was to be remuneration for performing an abortion on Mrs. Collier and defendant said ‘That is true.’ Defendant said that it would ruin him when his patients found out that ‘I do abortions.’ He showed them the instruments, Exhibits 1 and 4, which he stated he had used in performing the operation on Miss Solis. The witness then said that defendant explained what he did in the operation (his testimony in this respect was in substance the same as that of Officer Galindo). Defendant stated that injecting the astringent solution would cause the uterus to contract and to expel its contents.

Defendant testified that when Miss Solis and Goldstein came to his office on March 9, defendant was getting ready to leave and he told them to come back the next day. They returned the next day, and Miss Solis told defendant that he had been recommended to her by a friend. She then gave defendant a history of being nervous, having backache and a heavy vaginal discharge. He performed a routine examination in which he used the speculum (Exhibit 1) for dilating the vagina. The examination disclosed that the uterus was doubled back on itself and was lying against spinal nerves, and that the cervix was swollen. Defendant cleaned the area, using water, cotton, and forceps. He then applied an antiseptic solution with the syringe. He packed the vagina with gauze. Two days later he gave her the same kind of treatment. After that treatment he received $75 from Miss Solis and Goldstein. Defendant had told them the price would be $150—that is the routine price for a series of treatments for cases like this. The needles, which the police officers found in his office, were not his. They belonged to a doctor who formerly had an office next to defendant's office.

As above stated, the appellant contends that the court erred in failing to advise the jury to acquit appellant as to Count II, and in failing to instruct the jury that evidence relating to the offense charged in Count II could not be considered in arriving at a verdict as to Count I. He argues that the evidence was insufficient as a matter of law to support a verdict of guilty as to Count II, and that it was the duty of the count to instruct the jury to acquit defendant as to Count II; that the evidence relating to Count II (attempted abortion) shows nothing more than mere preparation; that the failure of the court to advise the jury to acquit defendant as to Count II permitted the jury to consider the evidence relating to Count II in arriving at a verdict as to Count I, and such failure constituted prejudicial error; and that granting a new trial and dismissing Count II did not remedy the error.

In People v. Gallardo, 41 Cal.2d 57, at page 66, 257 P.2d 29, at page 35, the court, speaking through Mr. Chief Justice Gibson, said:

‘In our opinion this evidence does not support the convictions for attempts to commit abortions. In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end; preparation alone is not enough, and some appreciable fragment of the crime must have been accomplished. [Citations.] The record shows merely preparation and does not disclose any direct, unequivocal act toward the commission of an abortion upon any of the three women. There is no evidence that Glynn or Gallardo started to provide, supply or administer any medicine or to use or employ any instrument or other means to procedure the miscarriage of any of the three women. Pen.Code § 274. The conduct of Glynn in arranging for operations, filing out hospital cards, and accepting money did not amount to an attempt.’

In the present case the record shows merely preparation and does not disclose any direct, unequivocal act toward the commission of an abortion on Josephine Collier. As held by the trial judge in granting the motion for a new trial as to Count II, the evidence as to that count was not sufficient to prove an attempt to commit abortion. The court erred in not advising the jury to acquit the defendant as to Count II. This is true although the motion was that the jury be directed to acquit the defendant as to County II rather than that the jury be advised to acquit. People v. Ward, 145 Cal. 736, 738–739, 79 P. 448. In People v. Kindleberger, 100 Cal. 367, at page 369, 34 P. 852, at page 853, it is said:

‘When, upon the trial of a defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of the judge to so inform the jury, and to advise a verdict of acquittal.’

See also People v. Crowley, 101 Cal.App.2d 71, 77, 224 P.2d 748.

The evidence of preparation introduced with respect to Count II was not admissible for the purpose of proving Count I. In order that such evidence be admissible, it must substantially establish the defendant's guilt as to such other offense. It must be shown with reasonable certainty that the accused committed the other offense. People v. Albertson, 23 Cal.2d 550, 579–580, 145 P.2d 7.

It was incumbent upon the court on its own motion to instruct the jury that the evidence with respect to Count II should be disregarded and could not be considered in arriving at a verdict with respect to Count I. In People v. Putnam, 20 Cal.2d 885, at page 890, 129 P.2d 367, at page 369, the court said:

‘It is incumbent upon a court in a criminal case to instruct the jury of its own motion, charging them fully and fairly upon the law relating to the facts of the case. [Citations.] The court is not relieved of the duty to give instructions whose necessity is ‘developed through the evidence introduced at the trial.’ [Citation.] An instruction is necessary if it is vital to a proper consideration of the evidence by the jury. [Citations.] Accordingly, it has been held that the court must of its own motion instruct the jury in criminal cases with respect to accomplices and their testimony [citations], corroborative evidence in cases involving the obtaining of property by false pretenses [citation], testimony of expert witnesses [citation], admission of confessions and the necessity of independent proof of the corpus delicti [citation], definition of manslaughter in prosecution for murder where evidence might sustain verdict of manslaughter [citation], and presumption of innocence and burden of proof [citations].'

To affirm the judgment despite the errors to which we have referred this court must determine that considering the entire record, the errors did not prejudice the rights of defendant. Const. art. 6, § 4 1/2. ‘If it cannot be said that, in the absence of the error complained of, a different verdict would have been improbable, the erroneous ruling constitutes a miscarriage of justice, within the meaning of the constitutional provision.’ People v. Newson, 37 Cal.2d 34, 45, 230 P.2d 618, 624. The prejudicial nature of the evidence with respect to Count II seems apparent to us. People v. Dabb, 32 Cal.2d 491, 500, 197 P.2d 1. We have no doubt it tended to prejudice defendant in the minds of the jury. The district attorney argued vigorously to the jury that the testimony of Officer Galindo and Josephine Collier was indicative of defendant's intent to abort Violet Solis. The inflammatory effect of the testimony with respect to County II is clearly evident from the fact that the jury found defendant guilty of the charge in that count. That the jury could and did sever such evidence from that with respect to Count I is highly improbable. We cannot say that it did. We have no doubt that such evidence would tend to convince a jury otherwise in doubt as to Count I. The jury was not told that they could not consider the evidence as to Count II in determining the guilt of defendant as to Count I. The denial of the motion to advise the jury to acquit on Count II and the failure to instruct that the evidence on Count II should be disregarded permitted the jury to assume that the evidence was sufficient to justify a conviction on Count II. Their belief that defendant was guilty of an attempt at another unlawful operation could not have failed to influence their verdict as to Count I. Unless it appears that the evidence with respect to Count II was not considered by the jury with respect to Count I, we cannot say that the evidence was respect to Count II did not prejudice defendant. People v. Crowley, 101 Cal.App.2d 71, 77, 224 P.2d 748.

While the evidence is legally sufficient to support the verdict with respect to Count I, we are unable to conclude that the defendant would have been convicted had the errors with respect to Count II not occurred. See People v. Berg, 96 Cal.App. 430, 442, 274 P. 433; People v. McCarthy, 88 Cal.App.2d 883, 890, 200 P.2d 69; People v. Geibel, 93 Cal.App.2d 147, 179–181, 208 P.2d 743; People v. Hooper, 92 Cal.App.2d 524, 531–532, 207 P.2d 117; People v. Carvalho, 112 Cal.App.2d 482, 492, 246 P.2d 950.

The judgment and the order denying a new trial as to Count I are reversed.

I concur.

I dissent. In my opinion there was no prejudice as to Count I in failing to advise the jury to acquit as to Count II. All the evidence was before the court when the motion was made. Even if the jury had been so advised, it was not bound by the advice. Appellant is contending that the prosecution acted in bad faith in proceeding with the trial as to Count II. When the trial judge was called upon to consider the motion to advise the jury to acquit as to to Count II, he had more facts to consider than were involved in the Gallardo case. In any event, it cannot be said that there was bad faith on the part of the prosecution or any one in submitting the evidence under Count II to the jury. The trial judge herein instructed the jury to the effect that it should consider the evidence applicable to each alleged offense as though it were the only accusation before the jury for consideration. It is to be assumed that the jury followed that instruction.

The effect of appellant's argument is that a trial judge in ruling upon a motion to advise the jury to acquit as to one of several counts must be right in his ruling, otherwise verdicts of guilty as to other counts must be set aside because the jury might have been influenced by the evidence which related to the one count. Such argument would lead to the incorrect conclusion that each count should be tried separately. In People v. Foster, 198 Cal. 112, 243 P. 667, the defendant had been convicted of two counts of robbery and the judge declined to sentence the defendant on the second count because the judge was of the opinion that the ends of justice would be served by the imposition of sentence on the first count, and he dismissed the second count. On appeal therein the defendant (appellant) argued that the second count was void and that the judgment rendered on the first count should be reversed because the evidence offered in support of the second count must have had a prejudicial effect upon the jury in its consideration of the first count. The court said, 198 Cal. at page 126, 243 P. at page 673: ‘But error cannot be presumed and it cannot be said that a jury would permit the evidence addressed to a count that failed, to influence it in the consideration of another and separate count. If appellant's reasoning be sound, section 954, Penal Code, which is the authority for the procedure adopted in the instant case, would be rendered fatal to the people in every case. The same argument as to the prejudicial effect of the offer of testimony to establish any one of the counts upon the minds of the jurors with respect to the other separate counts could be made with equal force whether the defendant be convicted on all the counts, or whether he be convicted on one or more and found not guilty on one or more. The people cannot be properly charged with bad faith by charging the defendant with two different offenses, as the evidence amply justifies its action. With bad faith removed as an element of consideration, the fact that a jury should acquit a defendant of an offense charged in one count could not be urged as a reason for vitiating a verdict of guilty found under another count, if it be sufficiently supported by legal evidence. We think there is no substantial merit in the contention of appellant as to legal prejudice suffered by reason of the proof offered to sustain the second count. This form of pleading is authorized by statute.’

The evidence as to Count I was sufficient to support the verdict as to Count I. It seems to me that the setting aside of the judgment of conviction as to Count I because the trial judge did not advise the jury to acquit as to Count II introduces a principle of procedure that will have a far reaching effect in the trials of criminal cases when there is more than one count. Under that principle, in a case where there are several counts, if the judge denies a motion to advise the jury to acquit as to one count, and if he later grants a new trial as to that count, it would seem that the judge might be required to grant new trials as to the other counts on the ground that the evidence pertaining to the one count affected all the verdicts. The result in the Gallardo case is that judgments of conviction upon several counts stand, even though the judgments on the three counts of attempted abortion were set aside. (It does not appear that the point here presented was presented in that case.)

I would affirm the judgment.

VALLÉE, Justice.

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