PEOPLE v. RANKIN (1937)

Defendants were accused by the grand jury of the county of Los Angeles of the crime of conspiracy to violate section 274 of the Penal Code, a felony, and in eight separate counts of having committed abortions. Defendants were tried jointly before a jury, whose verdicts were:

Defendants H. L. Houston, Bessie McCarthy, and Beatrice Bole were not apprehended and defendant W. Norman Powers entered a plea of guilty to count I of the indictment and testified on behalf of the state.

Defendants James Beggs, William A. Byrne, R. L. Rankin, Jesse C. Ross, and Valentine St. John alone appeal from the judgments and orders denying their motions for a new trial.

The appeal of defendant R. L. Rankin has heretofore been dismissed at his request.

Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal.App. 657, 659, 266 P. 558), the facts in the instant case are: Defendants R. L. Rankin and George E. Watts owned, operated, and directed a series of offices, extending from Seattle, Wash., to San Diego, Cal., for the purpose of illegally performing abortions. The remaining defendants, with the exception of those who were acquitted by the jury, were employed by them in various capacities in connection with the conduct of their illegal business. In the course of their business and in pursuance of their conspiracy abortions were performed upon Gladys Duckworth, Peggy Nowell, and Josephine Peacock as alleged in counts II, V, and IX of the indictment.

A.

Each appellant urges reversal of the judgments on the ground that there is no substantial corroboration of the testimony of his accomplices to show his participation in or connection with any of the crimes of which he was convicted.

The law is settled in California that a conviction cannot be sustained upon the testimony of an accomplice, unless it be corroborated by other evidence which tends to connect defendant with the commission of the offense charged in the indictment (section 1111, Pen.Code), and it is equally clear that the corroborative evidence necessary to comply with this requirement must of itself without the aid of the accomplice's testimony connect or tend to connect defendant with the commission of the offense charged. People v. Kempley, 205 Cal. 441, 455, 271 P. 478; People v. Janssen, 74 Cal.App. 402, 406, 240 P. 799; People v. Rokes (Cal.App.) 64 P. (2d) 746.

Applying the foregoing rules to the instant case, we find with reference to the appellants Beggs, Ross, and St. John, that, after eliminating entirely the testimony of their accomplices, the record is completely devoid of any evidence even slight, which connects or tends to connect any of them with any of the crimes of which they were convicted. Since the judgments as to these appellants must be reversed for the foregoing reason, it is unnecessary for us to consider the other contentions which they have advanced.

With reference to appellant William A. Byrne, we find a different situation. An examination of the record discloses that, after eliminating the testimony of his accomplices, there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to connect him with the commission of the offense charged, thus furnishing the necessary corroboration to the testimony of his accomplices. One example of such corroborative evidence is found in the testimony of Geraldine Gerding, secretary to the manager of the Ocean Center Building in Long Beach, who it is conceded was not an accomplice, to the effect that appellant Byrne, about July 29, 1936, paid rent for rooms used by some of his coconspirators in that city for the purpose of performing abortions. There is ample evidence of a similar nature; however, since no useful purpose would be subserved by setting the same forth in extenso, we refrain from further discussion of it. Thatch v. Livingston, 13 Cal.App.(2d) 202, 56 P.(2d) 549; Koeberle v. Hotchkiss, 8 Cal.App.(2d) 634, 48 P.(2d) 104; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399.

B.

Appellant Byrne relies for reversal of the judgments upon these additional propositions:

First: Count VII of the indictment did not charge a public offense.

Second: Section 274 of the Penal Code is unconstitutional in that it fails to inform a person charged thereunder with reasonable certainty as to what acts or actions are prohibited by it.

Appellant Byrne's first proposition is valid. On April 29, 1935, section 274 of the Penal Code read as follows: “§ 274. Administering drugs, etc., with intent to produce miscarriage. Every person who provides, supplies, or administers to any pregnant woman, or procures any such 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.” (Italics added.)

Count VII of the indictment read as follows:

“Count VII.

“For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charges set forth in Counts II, III, IV and V hereof, and connected in its commission with the charge set forth in Count I hereof, the said defendants, R. L. Rankin, George E. Watts, John A. Creeth, G. O. Shinn, William A. Byrne, Valentine St. John, H. L. Houston, Bessie McCarthy, Grace Cole, Lillian Wilson, Jessie Radcliffe, James Beggs, Beatrice Bole, Jesse C. Ross, Violette Pellegrini, W. Norman Powers and J. C. Perry, are accused by the Grand Jury of the County of Los Angeles, State of California, by this indictment, of the crime of Abortion, a felony, committed prior to the finding of this indictment, and as follows:

“On or about the 29th day of April, 1935, at and in the County of Los Angeles, State of California, the said defendants, R. L. Rankin, George E. Watts, John A. Creeth, G. O. Shinn, William A. Byrne, Valentine St. John, H. L. Houston, Bessie McCarthy, Grace Cole, Lillian Wilson, Jessie Radcliffe, James Beggs, Beatrice Bole, Jesse C. Ross, Violette Pellegrini, W. Norman Powers and J. C. Perry, did provide, supply, administer, procure, use, and employ an instrument upon the person of one Dorothy Woods, a woman, with the willful unlawful and felonious intent then and there and thereby to procure the miscarriage of the said Dorothy Woods, said use and employment of said instrument to procure said miscarriage of said Dorothy Woods, a woman, not then and there being necessary to preserve the life of the said Dorothy Woods.”

It is to be noted that the Penal Code section above quoted prohibited the aborting of a “pregnant” woman, unless the same was necessary to preserve her life. Count VII of the indictment, which attempts to charge the defendants with the commission of an abortion upon Dorothy Woods, failed to allege that she was “pregnant.” Under section 274 of the Penal Code as it read April 29, 1935, it was incumbent upon the People to allege and prove that the woman upon whom the abortion was performed was pregnant. People v. De Vaughan, 105 Cal.App. 516, 518, 288 P. 113. Therefore count VII was fatally defective in this respect and failed to state a public offense.

Appellant Byrne's final proposition is untenable. His entire argument is directed to the point that the words “procure the miscarriage of such woman” do not convey a definite and certain meaning. “Miscarriage” is thus defined in Bouvier's Law Dictionary, volume II, page 2221: “The expulsion of the ovum or embryo from the uterus within the first six weeks after conception. Between that time, and before the expiration of the sixth month, when the child may possibly live, it is termed abortion. When the delivery takes place soon after the sixth month, it is denominated premature labor. But the criminal act of destroying the foetus at any time before birth is termed, in law, procuring miscarriage.”

An almost identical definition will be found in Cyclopedic Law Dictionary, page 662, and substantially the same definition is given in each of the modern dictionaries of the English language. It is therefore evident that the phrase as used in the statute was sufficiently explicit to inform persons of common intelligence and understanding of the acts which were prohibited.

The judgments and orders denying the motions for a new trial relative to appellants James Beggs, Jesse C. Ross, and Valentine St. John are and each is reversed, and a new trial is ordered.

The judgments and orders relative to William A. Byrne on counts I, II, V, and IX are and each is affirmed, and the judgment and order on count VII as to this appellant are and each is reversed.

McCOMB, Justice.

We concur: CRAIL, P. J.; WOOD, J.