PEOPLE v. BROWN

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

The PEOPLE of the State of California, Plaintiff and Respondent. v. Lois BROWN, Defendant and Appellant.*

Cr. 5773.

Decided: April 24, 1957

Gladys Towles Root, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., Vern B. Thomas, Dist. Atty., Frank J. McCarthy, Asst. Dist. Atty., Santa Barbara, Thomas P. Weldon, Deputy Dist. Atty., Santa Maria, for respondent.

A jury found defendant guilty of one count of murder in the second degree and two counts of abortion. She appeals from the judgment.

On the evening of January 18, 1956, defendant committed an abortion on Clara Thornton at the defendant's home in Santa Maria, California. Clara testified to the modus operandi in detail.

Defendant stopped at Clara's home the next morning about 11:00 o'clock to inquire as to her condition. Lucy Sanchez, with whom Clara lived, and Beatrice Duran were there at the time. Clara then passed a substance which defendant identified as ‘the afterbirth.’ Also, she massaged Clara's abdomen, and told her to repeat the operation at intervals and instructed Lucy with reference thereto. She explained that the purpose of the manipulation was to get the womb back into place. Also, she told Clara to visit a doctor and tell him that she had a cold, and to give her a shot of penicillin.

On January 30th, Clara, while a patient in a Santa Maria hospital, was examined by Dr. R. C. Randall. As a result of his examination he determined that Clara had been pregnant and that an abortion had been performed upon her approximately ten days previously. His findings were corroborative of the case history given to him by her as to the manner in which the abortion had been performed. The doctor testified that the abortion was induced and not spontaneous. Prior to the abortion Clara was in good health: therefore it was not necessary to preserve her life.

On the afternoon of January 26, 1956, defendant visited Lucy Sanchez and Clara. Lucy's sister, Elsie Castillo, was present. Lucy had previously told her sister that she (Lucy) was pregnant and was going to have an abortion. At that time Lucy was in good physical condition. When defendant arrived she inquired of Clara whether Lucy had obtained and money. After a conversation with Lucy, defendant left for a short period. In the meantime, Lucy dressed. Upon defendant's return, she and Lucy drove away in defendant's car.

At approximately 7:30 that evening defendant went to the cafe where Clara was employed and told her that ‘they had gotten through about 5:00 o'clock,’ that Lucy had started flowing heavily, became dizzy, and was in a coma. Defendant was excited and asked Clara to accompany her to defendant's home. There Clara saw Lucy lying on a couch, covered with a bedspread; she was gasping, and virtually in the nude. There was blood on the bedspread, on some newspapers, and on a raincoat on which Lucy was lying on the davenport; also, there was blood on Lucy's body. She was taken to the hospital by defendant and Clara and defendant's mother, Mrs. Canosa. At the hospital defendant stated that she had an emergency case in the car that required immediate attention. Defendant's mother stated, in defendant's presence, that the name of the patient was Lucy Sanchez.

The body of Lucy was taken to the emergency room. At that time defendant told Clara that ‘she shouldn't have done it,’ and took $30 out of her wallet and gave it to Clara saying that it was to be used in case Lucy needed anything.

Lucy was dead on arrival at the hospital. Upon being so informed, defendant told Clara that ‘she didn't know what to do—whether to tell the truth or whether to deny it * * * whether she should run away or stick it out,’ and then handed Clara $70, saying, ‘Here's the rest of Lucy's money so that you can use it for her funeral.’ Clara gave the $100 to Lucy's sister, Elsie, who delivered it to Captain Oxford of the Sheriff's office the following day when an autopsy was performed on Lucy's body by Dr. John Blanchard.

The latter found that her death was caused by an acute loss of blood from the large blood channels within the uterus due to an induced abortion, and he testified there was no indications that the termination of Lucy's pregnancy was a spontaneous reaction or that it was necessary to preserve her life.

As grounds for reversal of the count involving Clara, defendant contends that her testimony was not corroborated and that the court erred in the admission of certain evidence. Neither of these grounds is well founded. The applicable principles on the question of corroboration were stated by this court in People v. Kendall, 111 Cal.App.2d 204, 210, 244 P.2d 418, 422, as follows: ‘In order to sustain a conviction of the crime of abortion the testimony of the woman upon whom the abortion has been performed must be corroborated by other evidence. [Citation.] In determining the sufficiency of such other evidence there are certain established legal principles that serve as guides. It must ‘tend to connect the defendant with the offense,’ but ‘So long as corroborating evidenced creates more than a suspicion of guilt, it is sufficient even though it ‘be slight and, when standing by itself’ entitled to but little consideration.' [Citations.] The necessary corroboration may consist of inferences from the circumstances surrounding the criminal transaction. [Citation.] It need not establish the precise facts testified to by the witness whose testimony it supports. * * * It is not necessary that the corroborative evidence prove the defendant is guilty of the offense. [Citation.] Such evidence is sufficient if it connects the defendant with the commission of the crime in such a way as reasonably to satisfy the trier of fact that the witness whose testimony it supports is telling the truth [Citations].' To the same effect are People v. Gallardo, 41 Cal.2d 57, 62, 257 P.2d 29; People v. MacEwing, 45 Cal.2: 218, 224, 288 P.2d 257; and People v. Bowlby, 135 Cal.App.2d 519, 521, 522, 287 P.2d 547.

Applying these principles to the instant matter, it is clear that there is ample corroborative evidence. The testimony of witness Duran, as to what was said and done by defendant when she visited Clara on the morning following the abortion, definitely connects defendant with the crime committed on Clara and indicates that Clara was telling the truth. It thus corroborates her testimony. The testimony of Dr. Randall serves to further corroborate the victim's story. People v. Ramsey, 83 Cal.App.2d 707, 717, 189 P.2d 802; People v, Pierson, 69 Cal.App.2d 285, 299, 159 P.2d 39.

Defendant seeks to discredit the testimony of Mrs. Duran by evidence indicating that at or about the noon period on January 19th she was at an attorney's office in Santa Maria transacting some business. She admits, however, that she was at the home of Clara and Lucy at ‘the noon hour or thereabouts' on the 19th; that she saw Mrs. Duran there at that time; and, upon leaving, took her to the packing shed where she worked.

Defendant vainly asserts prejudicial error by reason of the circumstance that Dr. Randall, in reciting the case history, mentioned that Clara had gone to a residence south of the city and the other person involved went there to perform an abortion on her; also, that the operator inserted the tip of a device into her womb and pumped a solution into it. In denying defendant's motion to strike this portion of the doctor's recitation of the case history, the court admonished the jury that the patient's statements to the doctor must not be taken as evidence proving the truth of such statements; that the case history simply disclosed the matters upon which the doctor acted and upon which he based his opinion. This instruction placed the doctor's testimony before the jury in proper focus. In making his diagnosis, Dr. Randall was entitled to take into consideration the case history, together with his objective and subjective findings and the physical condition of the patient. People v. Wilson, 25 Cal.2d 341, 348, 153 P.2d 720; People v. Shattuck, 109 Cal. 673, 678, 42 P. 315; Groat v. Walkup Drayage & Warehouse Co., 14 Cal.App.2d 350, 357, 58 P.2d 200.

Defendant argues that the court improperly admitted in evidence a syringe over her objections. This syringe was offered and received in evidence to illustrate the testimony of Clara, who said it resembled the instrument used upon her by defendant. In admitting the syringe in evidence the court advised the jury that ‘this exhibit * * * is purely for the purpose of illustration * * *.’ It was properly admitted for such purpose. People v. Miner, 96 Cal.App.2d 43, 51, 214 P.2d 557; People v. Thompson, 69 Cal.App.2d 80, 87–88, 158 P.2d 213.

As to the counts involving Lucy, defendant contends that (1) count 2, charging abortion, is merged into count 1, charging murder; (2) the court erred in admitting certain evidence; (3) the corpus delicti of the murder was not established; and (4) the district attorney was guilty of misconduct. None of these contentions justifies a reversal of the conviction on either count.

In support of her first contention defendant starts with the proposition that where death ensues as a result of an abortion, the death would be murder in the second degree because of the fact that the abortion was the causing factor. Therefore, she argues, ‘the abortion would be one of the elements in the crime of second degree murder.’ She further argues that ‘there was a single act involved,’ hence the abortion count is merged in the murder charge. This position is not well taken. The statutory crime of abortion is an offense entirely separate and distinct from that of murder and occurs when the acts specified in the statute have been committed with the requisite unlawful intent to procure a miscarriage, regardless of whether a death results. Pen.Code, sec. 274. Thus defendant's argument is fully answered in People v. Coltrin, 5 Cal.2d 649, 55 P.2d 1161, where the identical situation was presented, i. e., defendant was convicted of abortion and murder in the second degree. The two charges arose out of the defendant's treatment of a young girl and her subsequent death. In affirming the judgment the court stated, 5 Cal.2d at page 661, 55 P.2d at page 1167: ‘The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only are these two offenses separate and distinct in a legal sense and each dependent upon evidence not required in the other, but as a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element.’

The court further stated, 5 Cal.2d at pages 663–664, 55 P.2d at page 1168:

‘Certainly murder does not include abortion. Neither is the converse true. Death is by no means a necessary ingredient of abortion. There are classes of crime which have the same basic elements and a conviction or acquittal of one is a bar to a prosecution of the other. Assaults are of this class and a conviction of an assault with a deadly weapon with intent to commit murder, made upon the same person and consisting of one act, bars a prosecution for an assault with a deadly weapon or assault. Other illustrations could be drawn.

‘Abortion is a distinct crime from murder. * * *

‘In case of judgment pronounced on conviction of abortion, prosecution for murder would not abate, provided the party upon whom the abortion was committed died within one year and a day after its commission. Nor would the judgment of conviction obtained many months prior thereto be nullified by reason of the conviction of the murder charge resulting from said criminal operation.

‘Section 654, Penal Code, which provides that an act which is made punishable in different ways by different provisions of the Penal Code, cannot be punished under more than one of such provisions, has no relevancy whatever to the proposition before us. It is not sought in this proceeding to punish abortion in any different way than the sole manner provided by section 274, Penal Code, in which the crime is defined as the employment of certain means or methods or the use of instruments, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, the punishment being not less than two or more than five years. Murder and abortion are two distinct crimes and are not the same offenses, and there is no common basis upon which they may rest as the same offense.’

In People v. Gomez, 41 Cal.App.2d 249, 106 P.2d 214, the court upheld the judgment where defendant was convicted of abortion and murder in the second degree growing out of the same transaction.

Defendant contends that the court erred in allowing Ira Gin to testify that Lucy told him out of the presence of defendant, two months previous to her death, that ‘she was pregnant and that she was going to Tijuana and get an abortion.’ The answer to this contention is that no objection was made to this evidence. Shortly before this testimony was given the court sustained defense objections to questions which sought to connect defendant's name with this conversation. When the questions were later asked without any reference to defendant, no objection was interposed. Obviously, defendant is not now in any position to question the admissibility of this testimony.

Defendant seems to argue that the corpus delicti of murder was not proved, on the theory that no criminal agency was established. ‘In a murder charge the corpus delicti consists of two elements: the death of the alleged victim and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially.’ People v. Amaya, 40 Cal.2d 70, 75, 251 P.2d 324, 327.

In the instant matter there is proof that prior to her death Lucy was in good physical condition except for her pregnancy. Dr. Blanchard found no indications that the termination of her pregnancy was a spontaneous reaction. On the other hand, he did find that she had suffered an induced abortion. Clara's testimony revealed defendant's interest, on the fateful afternoon, in whether or not Lucy had obtained any money. When defendant called for Clara at her place of employment early that evening she made the significant remark that ‘They had gotten through about 5:00 o'clock.’ Upon arrival at the hospital defendant made another significant statement, viz., that ‘she shouldn't have done it.’ Then, upon being informed that Lucy was dead, defendant stated, ‘She didn't know what to do—whether to tell the truth or whether to deny it * * * whether she should run away or stick it out.’ Finally, she handed Clara $70 (having a few minutes previously given her $30 to be used in case Lucy needed anything), making the incriminating statement, ‘Here's the rest1 of Lucy's money so that you can use it for her funeral.’ The clear inference is, from the testimony of both Dr. Blanchard and Clara, that Lucy's death was caused by a criminal agency employed by the defendant.

Defendant claims prejudicial misconduct by the district attorney in his argument to the jury and error in the court's refusal to admonish the jury to disregard the prosecutor's particular comment. The incident arose out of the fact that defendant's statement was taken at the Sheriff's office on January 27, 1956, by Deputy District Attorney Weldon. This statement was taken in shorthand, and also recorded.2 The transcribed shorthand statement was read to the jury as a part of the People's case. During defendant's testimony she testified that Mr. Weldon, when taking her statement, asked her several questions at a time shouting and yelling at her without letting her answer, and that such conduct on the part of Weldon persisted throughout the taking of the statement. By way of rebuttal, the People requested the court to permit the record which was made of the questioning of defendant by Weldon to be played before the jury so that they might hear exactly what transpited at that time. After argument in the presence of the jury, defendant's objection to playing the record was sustained. In his summation of the case to the jury, Deputy District Attorney McCarthy referred to this incident and commented as follows: ‘And while I am on the subject of Mr. Weldon, you heard the defendant in her cross examination, or her redirect examination, rather, say in regard to the statement which she gave on January 27, 1956, that Mr. Weldon yelled and shouted at her and he asked two or three questions at the same time, and didn't give her a chance to answer, and that that course of conduct persisted throughout her entire questioning. The Court would not permit the actual voices of Mr. Weldon and Mrs. Brown to be played before you, but the denial of that permission was raised by an objection which the defendant made. The defendant herself made that objection and his Honor passed on it as a legal matter, and I cannot comment any more on that, except to say that, in my opinion, that that record would have established one way or the other. We regret that you were not permitted to hear it.’ The People seek to justify the prosecutor's comment on the basis that the People's request to play the record and the argument of counsel were had before the jury; that the statement of Mr. McCarthy was simply a summary or a reiteration of what had occurred during the trial in the jury's presence; and that no attempt was made to comment on the contents of the record and thus bring before the jury material which the court had excluded from their consideration. Condeding, at least arguendo, that the prosecutor overstepped the bonds of propriety in this instance, it does not appear that his remarks were prejudicial. Certainly there is no indication that the verdict probably would have been different but for this incident.

In this connection, defendant complains that the court failed to give the portion of CALJIC Instruction No. 6 which is included in the brackets below.3 The deleted portion of the instruction merely amplifies the material covered in the preceding sentences. The portion given adequately covered the offer of the recording into evidence, the objection, the trial court's ruling and the admonition that the jury was not to draw any inferences therefrom, and that the admissibility of evidence is purely a question of law.

The case was fairly tried and the jury was properly instructed on all pertinent issues. We find no prejudicial error.

The judgment is affirmed.

I concur in the prevailing opinion and the judgment except in one respect. It is held that an abortion which results in death may be punished both as abortion and second degree murder. In my opinion this ruling, though apparently authorized by People v. Coltrin, 5 Cal.2d 649, 55 P.2d 1161, cannot stand in the face of later pronouncements of the Superme Court. They point out that the present question is not one of double jeopardy, People v. Smith, 36 Cal.2d 444, 448, 224 P.2d 719, and that section 654, Penal Code,1 precludes multiple punishment of a single act or combination of immediately related acts.

In People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20, 27, it is said: ‘However, as is well stated by defendant's counsel, ‘no mere combination of words can result in an inflexible yardstick by which all cases may be measured; in each case the particular facts have had to be related to the legislative intent.’ (Italics defendant's.)'

In People v. Knowles, 35 Cal.2d 175, 187, 217 P.2d 1, 8: ‘But the applicability of section 654 is not limited to necessarily included offenses. If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated. If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative.’ To the same effect see, In re Chapman, 43 Cal.2d 385, 390, 273 P.2d 817; People v. Kehoe, 33 Cal.2d 711, 715–716, 204 P.2d 321; People v. Smith, supra, 36 Cal.2d 444, 448, 224 P.2d 719.

To my mind the recent decision in People v. Marshall, 48 Cal.2d 394, 309 P.2d 456, establishes the charge of abortion on Lucy Sanchez to be an offense included in the murder charge. The information is in two counts, murder and abortion.

The record discloses only one act as the basis of conviction on these counts relating to Lucy Sanchez. There was no interval of time between successive acts. There was one composite act, on abortion which resulted in death almost immediately, with no new act intervening between abortion and death.

In such circumstances, although the sentences run concurrently, as here, the conviction of the lesser charge should be reversed in order ‘to ‘preclude the dual judgments of the trial court from hereafter working any possible disadvantage or detriment to the defendant in the later fixing of his definite term by the [Adult Authority].’' People v. Kehoe, supra, 33 Cal.2d 711, 716, 204 P.2d 321, 324; Accord: People v. Knowles, supra, 35 Cal.2d 175, 189, 217 P.2d 1; People v. Smith, supra, 36 Cal.2d 444, 448, 224 P.2d 719.

In my opinion the judgment should be reversed as to the conviction of abortion upon Lucy Sanchez (Count II) and affirmed in other respects.

FOOTNOTES

1.  There was evidence that defendant charged Clara $100 and that she would take care of both Clara and Lucy for $200.

2.  By stipulation, the recorded statement was played for defendant and her counsel.

3.  That instruction reads: ‘At times throughout the trial the Court has been called upon to pass on the question whether or not certain offered evidence might properly be admitted. You are not to be concerned with the reasons for such rulings and are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law. In admitting evidence to which an objection is made, the court does not determine what weight should be given such evidence; nor does it pass on the credibility of the witness. [As to any offer of evidence that has been rejected by the court, you, of course, must not consider the same; as to any question to which an objection was sustained, you must not conjecture as to what the answer might have been or as to the reason for the objection.]’

1.  Pen.Code, § 654. ‘An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. * * *’

FOX, Justice.

MOORE, P. J., concurs.

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