PEOPLE v. MacEWING

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Alexander MacEWING and Sam Eugene Hewett, Defendants and Appellants.*

Cr. 5754.

Decided: September 03, 1957

Ball, Hunt & Hart, Long Beach, for appellant Bruce Alexander MacEwing. William T. Pillsbury, Long Beach, for appellant Sam Eugene Hewett. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Los Angeles, Thomas W. Cochran, Deputy Dist. Atty., Long Beach, for respondent.

Bruce A. MacEwing and Sam E. Hewett were accused by information in Count I of conspiracy to commit abortion and in Count II with abortion. Trial was to a jury, which found them guilty as charged. On an appeal taken by defendants the judgments were reversed. People v. MacEwing, 45 Cal.2d 218, 288 P.2d 257. At the retrial, which was also to a jury, MacEwing was convicted on both counts and Hewett was found guilty of conspiracy but not guilty of abortion. Defendants' motions for a new trial were denied; Hewett was placed on probation and MacEwing was sentenced to state prison. Defendants appeal from the judgments (Penal Code, § 1237), and the denial of their motions for a new trial.

Mrs. Frawley, the complaining witness, testified that in April 1953 she had had sexual intercourse with defendant Hewett, who was her co-worker at the Douglas Aircraft plant in Long Beach. She subsequently consulted a Dr. Johnson and was told that she was pregnant. She informed Hewett of her condition and asked if he could help her. Hewett told her that defendant MacEwing (a licensed physician and surgeon) had performed an abortion on his sister and that he would make the arrangements with him. The next day Hewett told Mrs. Frawley that he had talked with the doctor, and gave her a handprinted card containing MacEwing's name, address and telephone number. The card was received in evidence. On August 17th Mrs. Frawley visited the doctor's office, where she was examined and was told that the price would be $400; she returned on August 20th and paid the $400 to a nurse. MacEwing then performed the abortion. The next day Mrs. Frawley talked to the doctor on the telephone and he asked her if she had miscarried; on learning that she had not, he said that he would see her on the 24th. On that date she went to MacEwing's office and was given several hypodermic injections to bring on cramps. She left by taxi and late that evening she had a miscarriage. On August 30th she called Dr. Johnson, who sent her to a hospital where she remained for several days. She described in detail the offices occupied by MacEwing and the jury was taken to view the premises.

Dr. Bernard Johnson testified that on June 26th he told Mrs. Frawley she was pregnant. He saw her on the night of August 24th; she was in severe pain and told him that she had had an abortion and he examined the fetus she had expelled. A week later she had a fever and a pelvic infection which he believed was due to an abortion. He sent her to a hospital. He testified that he could find no indication that an abortion was necessary to save her life. Mrs. Frawley's mother testified that on the night of August 24th her daughter was very sick and that she witnessed the miscarriage.

Matt Anderson, a cab driver, testified that on August 24th he received an order to go to MacEwing's office and pick up a passenger; he stated that Mrs. Frawley came out of the doctor's office looking very pale, disheveled and nervous and that he took her to an address she gave him.

On October 1, 1953, after the preliminary hearing, MacEwing was observed by George Franco, a security officer at the Douglas plant, getting out of a car on the parking lot. Dr. MacEwing was holding some handbills. When asked for identification he said his name was Case, that he worked for Rheems Manufacturing Company, that he had been at a union meeting and was trying to make a few dollars passing the handbills. One of the handbills was received in evidence. It read: ‘Union Civic & Morals Committee. Union Workers. This is where your funds go!! Douglas Worker, Gertrud Frawley * * * Admitted Abortion!! She figures to apply for insurance to pay. We Protest! Signed—Painters dept. 559. Long Beach Douglas Plant. Swing Shift.’ Oval Pierce, president of the union local at the plant, testified that the handbills were not authorized by the union and that the union did not have a Civic and Morals Committee.

When Hewett was arrested he admitted to officers that he knew Mrs. Frawley and when asked by the officers whether he had made any arrangements for her regarding an abortion, he said that she had talked to him about her pregnancy and he had told her he would see if he could do something about it. He said that he knew MacEwing and that he and his brother had painted the doctor's offices several years previously. He said he had telephoned MacEwing's office but had not talked to the doctor; he told a woman at the office that he was trying to get help for a pregnant girl who wanted to get rid of her baby; the woman at the office told him that it couldn't be done. When MacEwing was arrested he denied knowing Mrs. Frawley. Neither defendant testified.

The first assignment of error on behalf of Hewett is that the court erred in receiving in evidence the conversation between Hewett and the arresting officer. It is argued in this connection that Hewett's extra-judicial statements were not to be interpreted as an admission of wrongdoing, hence the officer's testimony was hearsay and should have been excluded. The argument is without merit. Evidence may be given of the acts, declarations and omissions of a party. Code Civ.Proc. § 1870; Pen.Code, § 1102. Hewett told the officer that he knew MacEwing and had asked someone in MacEwing's office if an abortion could be arranged. His statements were relevant. They were an admission that he was ready and willing to make an arrangement with MacEwing for an abortion and were logically related to the existence of a conspiracy. The officer's testimony was therefore properly received as an admission. 19 Cal.Jur.2d 133–136; People v. Cavanaugh, 44 Cal.2d 252, 266, 282 P.2d 53.

The next assignment of error to be considered is the contention of Hewett that the evidence tending to implicate him was legally insufficient as corrobation of the testimony of Mrs. Frawley. Pen.Code, § 1108.

The rules governing the sufficiency of corroborating evidence were stated in the opinion of the Supreme Court on the prior appeal. Corroborating evidence is sufficient if it tends to connect the accused with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth; it must be considered without the aid of the testimony which is to be corroborated, and is insufficient if it requires the interpretation and direction of such testimony in order to give it value. People v. MacEwing, supra, 45 Cal.2d 218, 224–225, 288 P.2d 257, and cases cited.

Corroborating evidence need not be direct but may be circumstantial. People v. Griffin, 98 Cal.App.2d 1, 26, 219 P.2d 519, and cases cited. It need not extend to all the elements of the offense, nor to every detail included in the testimony of the witness to be corroborated; it is sufficient if it tends, in some slight degree, to implicate the accused. People v. Griffin, supra, 98 Cal.App.2d 1, 24–25, 219 P.2d 519, and cases cited. The weight of the corroborating evidence is a question of fact for the jury to determine. People v. Trujillo, 32 Cal.2d 105, 112, 194 P.2d 681.

The admissions of Hewett were sufficient as evidence that he was willing and endeavored to arrange with MacEwing for the performance of an abortion. It could have been inferred from evidence, other than the testimony of Mrs. Frawley, that she did not know Dr. MacEwing, or, at least, that Hewett believed them to be unacquainted, since he endeavored to contact the doctor for her. There was evidence other than that of Mrs. Frawley that she did go to the doctor's office and it was a fair inference that she went to see him at the suggestion of Hewett. Although there was no direct evidence of any communication between Hewett and the doctor it was significant that instead of giving up the idea of enlisting the services of the doctor, after learning of Hewett's unsuccessful request by telephone (assuming the truth of his admissions), Mrs. Frawley visited the doctor. And it is scarcely conceivable that Mrs. Frawley would have failed to inform the doctor that she had come to him at the suggestion of Hewett. In the usual course of events the woman who had received the telephone call of Hewett would have made a report of it to the doctor. When it is considered that Hewett felt some responsibility to render assistance to Mrs. Frawley, and that but for his advice and efforts she would not have gone to the doctor, who was a stranger to her, it was not an unreasonable inference that Hewett had contacted the doctor, disclosed to him the purpose he and Mrs. Frawley had in mind, and obtained his consent to perform the operation. We deem the corroborative evidence sufficient as to Hewett.

We are also of the opinion that there was sufficient corroboration of Mrs. Frawley's testimony with respect to the case against MacEwing. The jury's view of the premises was corroborative of her description of its physical layout and it was a proper inference that if she had not visited MacEwing's office she would not have been able to describe it. People v. Califro, 120 Cal.App.2d 504, 513, 261 P.2d 332. The cab driver's testimony was corroborative of her presence at MacEwing's office, and there was testimony of the driver and Mrs. Frawley's mother as to her physical condition and appearance after her visit to the office. Dr. Johnson's opinion that her condition at the hospital was consistent with an abortion was also corroborative of her testimony. People v. Morris, 110 Cal.App.2d 469, 477, 243 P.2d 66. Mrs. Frawley's account of Hewett's connection with the abortion was corroborated by Hewett's admissions to the arresting officer previously discussed. People v. Griffin, supra, 98 Cal.App.2d 1, 29, 219 P.2d 519; People v. Jordan, 115 Cal.App.2d 452, 456–457, 252 P.2d 328; People v. Wilson, 25 Cal.2d 341, 346–347, 153 P.2d 720.

The jury could also have taken into consideration the fact that neither defendant took the stand to deny the truth of Mrs. Frawley's testimony. While the failure of defendants to testify could not be used to fill a gap in the proof of the People's case, and did not constitute corroboration, it lent weight to the evidence presented by the People as to matters presumptively within their knowledge and which, if constituting false accusations, would normally be denied. People v. Goldstein, 136 Cal.App.2d 778, 790, 289 P.2d 581, and cases cited.

The final point raised by defendants is that the court committed prejudicial error in instructing the jury. Defendants requested the following instruction, which was refused: ‘If the corroborating evidence, if any, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable and one of which points to the guilt of the defendant and the other to his innocence, you are required under the law to adopt that interpretation which will admit to the defendant's innocence and reject that which points to his guilt.’ This was not a correct statement of the law.

There are two phases of the problem where corroboration is required. The first is the question whether the evidence elicited from the corroborator fairly, reasonably, and logically tends to connect the defendant with the commission of the offense.

Counsel for MacEwing correctly say: ‘The law of the case required the lower court to instruct the jury that they were to assume that Frawley's evidence was removed from the case and that they were to then examine all other evidence in the case and determine if it clearly and logically permitted the jury to infer that the defendant was connected with the offense charged. People v. MacEwing, supra, 45 Cal.2d 218, [288 P.2d 257].’

The court gave such an instruction as follows: ‘In determining whether or not the testimony of the witness Frawley has been corroborated as required by law, you must for the purpose only of deciding the special issue of corroboration as required by section 1108 of the Penal Code, assume to be removed from the case, all of the testimony of the witness Frawley and then examine all other evidence with the view of determining if that evidence tends to connect the defendant with an offense charged in the information. If such other evidence does in and of itself and without the aid of Frawley's testimony tend to connect the defendant with the commission of an offense alleged in the information, then the testimony of the witness Frawley would be corroborated; if such other evidence does not in and of itself tend to connect the defendant with the commission of an offense alleged in the information, there is no corroboration although the witness Frawley may be corroborated in regard to any number of facts sworn to by her.’

It was a proper and sufficient instruction with respect to the first purpose of examining the corroborative evidence, namely, to determine whether it tends reasonably to prove a connection of the accused with the commission of the offense.

The second phase of the problem arises if and when the jury has concluded, in accordance with the foregoing formula, that the corroborative evidence tends to connect the defendant with the commission of the offense. It then becomes necessary for the jury to examine and compare the corroborative evidence with the testimony of the corroboratee, since it is by such comparison that the credibility of the latter is to be determined. If the corroborative evidence dovetails with that of the corroboratee, in whole or in material part, with respect to elements of the offense, so as to convince the jury that the corroboratee has testified to the truth, credibility is established, and the corroboration is sufficient to allow reliance upon the testimony of the corroboratee in its entirety.

There remains, however, the further question whether, upon the entire evidence, including that of the corroboratee, the guilt of the accused has been established beyond a reasonable doubt. Therefore, the court gave the following instruction:

‘If the evidence in this case, (as to any particular count), is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant's innocence, and reject that which points to his guilt.

‘You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to defendant's guilt, the entire proof must carry the convincing force required by law to support a verdict of guilty.’

The instruction that was refused would have required the jury to reject the corroborative evidence if it was consistent with innocence, as well as with guilt, even though it logically and reasonably connected the defendants with the commission of the offense charged. It would have required that the corroborative evidence touch every element of the offense, and in a manner that would preclude every reasonable theory of innocence. But this is the rule applicable to the entire evidence, as the court instructed. The corroboration need not go to all the elements of the offense, nor to all the material evidence of the corroboratee. People v. Griffin, supra, 98 Cal.App.2d 1, 25–26, 219 P.2d 519; People v. Gallardo, 41 Cal.2d 57, 63, 257 P.2d 29; People v. Williams, 128 Cal.App.2d 458, 462, 275 P.2d 513; People v. Yeager, 194 Cal. 452, 473, 229 P. 40; People v. Baillie, 133 Cal.App. 508, 511, 24 P.2d 528; People v. Baba, 101 Cal.App. 723, 725, 282 P. 403; People v. Negra, 208 Cal. 64, 69–70, 280 P. 354; People v. Trujillo, 32 Cal.2d 105, 111, 194 P.2d 681. The instruction was properly refused.

At the request of the People the court instructed as follows: ‘You are instructed that the corroborating evidence legally necessary to sustain a conviction of either the crime of conspiracy to commit abortion as charged in Count I of the information or the crime of abortion as charged in Count II, is sufficient if it tends to connect a defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated—gertraut Frawley—is telling the truth.’ It is contended that it was error to give the instruction although it is in the language used by the Supreme Court on the prior appeal. People v. MacEwing, supra, 45 Cal.2d 218, 224, 288 P.2d 257. According to the argument the instruction permitted the jury to consider the testimony of Frawley in determining whether the corroborative evidence tended to connect a defendant with the commission of the offense. If this had been the only instruction with respect to the corroborating evidence it might have been understood by the jury as counsel for MacEwing understand it. It does not state the issues separately, that is to say, the rule that is applicable as to the sufficiency of the evidence to connect the defendant with the offense and the rule that is applicable when that connection has been shown and the corroborative evidence has to be matched with that of the corroboratee. But there is no ambiguity or uncertainty or inadequacy of the instruction when it is read with other instructions on corroboration, especially the one we have quoted. We are of the opinion that there was no error in this instruction.

On behalf of MacEwing it is contended that the court committed error in giving two instructions each of which related to accusatory statements. One of them stated in part ‘The reaction of a defendant to an accusatory statement may in itself, furnish corroboration.’ The other stated that the failure to reply to an accusatory statement or the making of false, evasive or contradictory statememts may be considered as indicating an admission that the accusation was true, and that while such statements would not be sufficient to prove guilt they were to be considered as a circumstances tending to prove a consciousness of guilt. There were no accusatory statements made to MacEwing and there was no occasion for instructions on the subject. They should not have been given. The officer who arrested MacEwing testified that he told MacEwing what he was being arrested for, told him that Mrs. Frawley was making the accusations, and that MacEwing replied that he had never seen her nor heard her name mentioned.

The statement ‘The reaction of a defendant to an accusatory statement may in itself, furnish corroboration’ was clearly erroneous. The question of the legal sufficiency of the corroborative evidence is one of law. The statement has no place in an instruction. It is vague and meaningless. It sets up no standard and supplies no test, but suggests that there is a test of some sort and leaves it to the jury to determine what it is. The statement also carried an implication that there was evidence of some reaction of MacEwing to an accusatory statement that might be deemed sufficient as corroboration. It was for the jury to determine, if that was possible, what reaction the court had in mind, for a so-called ‘reaction’ might be anything from a confession to a positive denial of guilt. The implication was not removed by the additional admonition that the ‘reaction mentioned should be disregarded unless the accused made some statement that indicated an admission that the accusatory statement was true.’ The court was still speaking of a ‘reaction’ that did not exist. It is contended that inasmuch as there was no evidence of MacEwing's conduct or statements other than his voluntary statement that he did not know Mrs. Frawley, the instruction erroneously suggested that if the jury believed he did know her, his denial that he knew her could be regarded as an indication of a consciousness of guilt. We doubt that the instruction would have been so understood. Notwithstanding the possible implication of the erroneous instructions, we do not believe the jury could have regarded MacEwing's denial that he knew Mrs. Frawley as indicating a consciousness of guilt, or an admission of an incriminating fact. The error was not prejudicial.

The judgment as to both defendants and the orders denying their motions for a new trial are affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.