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District Court of Appeal, Fourth District, California.


Cr. 311.

Decided: August 16, 1935

Sharpless Walker, and Otto A. Jacobs, both of Santa Ana, for appellant. U. S. Webb, Atty. Gen., and John O. Palstine, Deputy Atty. Gen., for the People.

The defendant was charged with the crime of abortion and, in a second count, with the crime of murder. He was convicted of abortion on the first count and of murder in the second degree on the second count and sentenced on both, the sentences to run concurrently. This appeal is from the judgments and from orders denying motions for a new trial.

It is contended that the evidence is not sufficient to sustain the verdict. The appellant is a physician seventy-seven years of age, and the two charges arose out of his treatment of a girl sixteen years old and her subsequent death. The defense was that the appellant merely made an examination of the girl to determine whether or not she was pregnant; that he found she had previously aborted; and that all he did was to clean up and treat the condition he found.

Another doctor testified that the girl came to him on January 19, 1935; that he made a complete examination of her, with a Friedman test, and found that she was a perfectly healthy girl who was six weeks pregnant; that he saw her again on January 20 and January 24; that she admitted to him that she had taken some medicine and drugs, but that on these three occasions there was no evidence of any interference, either medical or surgical, which would cause a miscarriage; that he himself used no medicine and no instruments but merely determined her condition; and that, in his opinion, an abortion was not necessary to save her life. The mother of the girl testified that on January 30, 1935, she went with the girl to the office of the defendant; that she told him the girl was in trouble and wanted to have something done; that the defendant replied he thought he could do something; that she asked what he charged for an operation like that to which he replied $50; that after some talk he agreed to do it for $35 and told them to come back on February 4, 1935, at 8:30 a. m.; that they returned at that time and she told the appellant she only had $20; that the appellant accepted this amount with the girl's watch; that when they went there the girl was suffering no pain and was not flowing; that the appellant administered a hypodermic and took her daughter to another room; that about an hour later she went into this room and her daughter was on an operating table; that the girl was then removed to a bed to remain until she became conscious; that fifteen or twenty minutes later the appellant administered another hypodermic; that the girl was bleeding and a napkin was placed upon her; that she was taken home about 1 o'clock; that the girl was suffering pain in the abdomen from the time she was brought home; and that the next morning another doctor was called.

The girl was taken to the hospital on February 9 and died on February 14, 1935.

A doctor who performed an autopsy testified that he found a piece of placential tissue, a tissue which results from conception, in the uterus; that death came from peritonitis; that this girl had been “operatively manipulated” causing this infection; and that, in his opinion, as a result of the examination, an instrument had been used and peritonitis was caused by “instrumentation.” Another doctor, who treated the girl from February 9 until her death and who assisted in the autopsy, testified that the cervical canal was unduly enlarged, congested, red, and gave the appearance of trauma, a bruising of the tissues in that area. He expressed an opinion that an instrument had been inserted, basing the same upon the fact that the living tissues of the cervix were traumatized. Both of these doctors expressed the opinion that an abortion was not necessary to save the girl's life.

The defendant testified that on January 30, the girl and her mother came to his office; that the mother told him she had just discovered that the girl was in a delicate way and wanted to know if there was anything he could do or would do that could be safely done to help her out of it; that he told her to bring the girl in on February 4 and he would make an examination and see whether or not she was pregnant, and if she was what might be the best thing to do about it; that he told her the charge would be $35; that this charge was for an examination to ascertain whether or not she was pregnant; that the mother told him she knew her daughter was pregnant but that this did not mean anything to him, as she might be mistaken; that on February 4 the mother gave him $20 and a watch that belonged to the girl; that he gave the girl a hypodermic injection and then an anaesthetic; and that he then made an examination to find out whether or not she was pregnant. He then testified that in making the examination some blood and a blood clot came out on his hand so he inserted a speculum to enable him to look at the cervix; that he found a tear or laceration in the uterus about an inch long and knew at once that “there had been some meddling there”; that he decided to explore the uterus to see if she had aborted and if it was a complete abortion; that he did not find any part of the fetus; and that he then “gave it up” and merely irrigated the parts and did what he could to prevent a possible infection. While at the trial the appellant denied he had intended to perform an abortion in case he found the girl pregnant, his testimony before the grand jury was admitted in which he frankly stated that he intended to do so and that he told them to come on February 4 for that purpose.

The appellant's nurse testified that she was present when the appellant examined the deceased; that the appellant “inserted his two fingers and his hand was full of blood”; that the appellant then put the girl under an anaesthetic and inserted a speculum and opened it up and called her attention to a laceration which she says she observed; that the appellant then took a little instrument and took out some blood clots and did nothing more except to wash the patient and put some medicine in her. The two doctors who performed the autopsy testified that at that time they found no such laceration as that described by the appellant and produced the uterus which had been taken from the girl, which showed no such laceration. There was evidence that such a laceration as that described by the appellant if it had existed on February 4 would have been visible on February 14, and that the uterus when introduced in evidence was in the same condition as when taken from the body except that it had been cut open to permit inspection and except for the action of the preservative in which it was kept, and that neither of these would have affected the laceration in question. The defendant himself admitted before the grand jury that the laceration he observed on February 4, 1935, would not have healed before the death of the patient on February 14 and would still have been noticeable at that time.

While the appellant insists that there is no evidence to show that the girl was pregnant on the morning of February 4, or that he did anything other than make an examination and treat the condition he found, this contention rests upon a conflict in the evidence at best, and the brief summary of the evidence above set forth, with the reasonable inferences therefrom, is sufficient to support the verdict. People v. Knowles (Cal. App.) 46 P.(2d) 788; People v. De Vaughn, 2 Cal. App. (2d) 447, 38 P.(2d) 192.

It is next urged that the court committed prejudicial error in admitting the testimony of two witnesses who testified to the effect that the appellant had performed abortions upon them, respectively, on September 7, 1934, and on December 20, 1934. It is further urged that the district attorney should have stated the purpose for which this evidence was offered, that the trial court should have admonished the jury at the time that it was admitted for a special purpose, that the argument relating thereto should have been limited to this special purpose, and that the court at the close of the case should again have instructed the jury that it was admitted only for a special purpose. It is further argued that this evidence was not admissible on the question of intent because the appellant freely admitted that he had intended to perform such an operation had he found it necessary and that, in any event, it would only become admissible as rebuttal after evidence for the appellant was introduced.

While the appellant admitted before the grand jury that he intended to commit an abortion on this occasion, he refused to admit this at the trial and stated that he had only performed certain acts for another purpose. His intention in performing these acts was directly in issue. It was incumbent upon the prosecution not only to prove that certain acts had been done which resulted in an abortion, but also that these acts were performed not for a lawful purpose but with the intention of causing an abortion. People v. Josselyn, 39 Cal. 393; People v. Richardson, 161 Cal. 552, 120 P. 20; People v. Lee, 81 Cal. App. 49, 252 P. 763; People v. Browning, 132 Cal. App. 136, 22 P.(2d) 784. It is well settled that where an offense is of such a nature that proof of the act with which the defendant is charged is not in itself proof of the required criminal intent and where additional proof of such intent is necessary to prove the crime charged, evidence of other offenses of a similar nature committed by the defendant is admissible for the purpose of proving intent. People v. Morani, 196 Cal. 154, 236 P. 135; People v. Northcott, 45 Cal. App. 706, 189 P. 704; People v. Hickok, 56 Cal. App. 13, 204 P. 555; People v. Judson, 128 Cal. App. 768, 18 P. (2d) 379. Since it was incumbent upon the prosecution to prove the intent with which the act was done, and especially since the order of proof is largely in the discretion of the trial court, it was not prejudicial error to receive this evidence during the main case for the prosecution. People v. Northcott, supra; People v. Sindici, 54 Cal. App. 193, 201 P. 975. The appellant did not ask the court to admonish the jury at the time this evidence was received that it was received for a special purpose but, at the close of the case, the court instructed the jury to that effect.

The appellant complains of the following instruction given by the court, “Testimony has been introduced by the prosecution in this action tending to prove other alleged acts of abortion by the defendant. This testimony was admissible only when the defendant claimed he had not performed the operation following an agreement to do so with the mother of Charlotte Valentine, for the reason that the said Charlotte Valentine had a miscarriage before she came to his office on February 4th, 1935. To rebut this contention of defendant, such testimony was admitted. This testimony was not introduced to prove distinct offenses, but was introduced to corroborate the evidence tending to support the one specified alleged offense for which the defendant is now on trial herein, as a felonious intent is an essential ingredient of the crime of abortion as charged, and said testimony was introduced for the purpose to show intent and motive on the part of said defendant,” and the refusal of the court to give this instruction, “You are instructed that in this case the defendant cannot be convicted of any other offense than the offenses upon the person of Charlotte Valentine, as charged in the indictment herein, or offenses against said person included in said charges.”

While the first of these instructions is far from a model, we think it sufficiently informed the jury that the evidence of two other offenses of a similar nature, which was received, was to be considered only on the question of the intent of the appellant and that he was not to be convicted on account of other offenses, but that the offense with which he is here charged was alone to be considered by him. This is especially true when the instruction complained of is considered with several instructions which both preceded and followed it, in which the court definitely limited the matter to the offense charged in the indictment. In our opinion, any technical error in connection with this instruction may not be held sufficient to justify a reversal in view of article 6, § 41/212, of the Constitution.

Error is assigned in the admission of the testimony of another witness, a deputy sheriff, who testified that on February 11, 1935, he went to the appellant's office and asked him to accompany him to the district attorney's office, that the appellant inquired as to why he was wanted, and that when told it was in regard to an abortion, he replied, “Which one?” This statement by the appellant was in the nature of an admission and tended to indicate a consciousness of guilt. We see no reversible error in its admission.

It is next urged that the court erred in admitting in evidence the uterus of the deceased, it being urged that its only purpose was to prejudice the jury. It had another purpose since the appellant and his nurse testified that they observed a laceration thereon which did not there appear at the time of the autopsy or at the time of the trial. The defendant's rights were amply protected in connection with any changes that had occurred in the condition of the exhibit.

It is strenuously urged that the court erred in refusing, prior to the trial, to require the district attorney to furnish to the appellant a statement made by the girl in question shortly before she died, and again in refusing a request of the appellant during the trial to have this statement admitted in evidence. The statement was taken on February 11, 1935, at the hospital and was taken down in shorthand. The appellant contends that it was in the nature of a dying declaration and also that it was admissible as showing the condition of the girl at the time she came to him on February 4. The statement was not admissible as a dying declaration since the girl at that time stated she thought she was going to get well. The appellant's contention that this statement was admissible as showing the condition of the girl at the time she came to him on February 4 is based upon a portion thereof in which the girl admitted that she had taken some capsules and some medicine. It appears from the statement that these were taken by her more than a week before February 4 and nothing in the statement would even indicate that she was not pregnant on the last-named date. It further appears that appellant's contention in this matter is purely a technical one since the statement in its entirety, if admitted in evidence, instead of being helpful to him would necessarily have had a quite contrary effect.

It is contended that the court was guilty of prejudicial error in commenting on the evidence after the case had been submitted to the jury. The jury returned to the courtroom and asked that certain instructions be reread, which was done. Thereafter one of the jurors asked, “Could you tell us the relationship between the first count and the second?” The court reread both counts of the indictment and certain instructions with reference to each count and then said: “It might be possible that some of the jurors are confused by the fact that there are two counts, one charging murder and one abortion. I will say that under our code not only murder is a felony, of course, but abortion is a separate and distinct offense; it also is a felony, and under the indictment in this case if the jury believes the evidence introduced by the people to a moral certainty and beyond a reasonable doubt, that evidence will support the indictments on both counts.” This statement was in answer to the juror's question and amounts to a statement that the evidence on behalf of the prosecution, if believed by the jury to a moral certainty and beyond a reasonable doubt, was legally sufficient to support the conviction on both counts. No attempt was made to comment on the weight of the evidence or express any view that might be held by the court. Whether or not the statement was proper, under the recent amendment to the Constitution (art. 6 § 19), we are unable to regard it as reversible error under the circumstances of this case.

After reading the entire record, we cannot see how the jury could have come to any other conclusion with respect to the guilt of the appellant and, with that in mind, we are unable to say that any error or irregularity appearing is sufficient to have resulted in a miscarriage of justice.

The final contention is that in pronouncing sentence upon both counts the court violated section 13 of article 1 of the Constitution and section 654 of the Penal Code relative to placing a person twice in jeopardy and imposing two punishments for one act. In this connection it is also argued that since judgment was first pronounced on the abortion charge the court was without power to pronounce any judgment on the murder charge. Irrespective of the merits of the first of these contentions we think the order in which the verdicts were read, and in which the judgments were pronounced, is not material (People v. Degnen, 70 Cal. App. 567, 234 P. 129) and that, in any event, the sentence on the more serious charge may be sustained under the authorities which will be hereafter cited.

In most cases where an abortion has been committed and where the victim has died, the prosecution and conviction have been upon the greater charge alone. It seems clear under the authorities that where a defendant was convicted on an abortion charge and where the victim thereafter died, the first conviction would not be a bar to a subsequent prosecution for murder. People v. Wilson, 193 Cal. 512, 226 P. 5; People v. McKee, 80 Cal. App. 200, 251 P. 675. While a prosecution on both of these charges in one action after the death of the person involved is unusual, we think the same principles are applicable and that a prosecution for the one is not a bar to a prosecution for the other.

The constitutional provision referred to relates to a second jeopardy for the same offense. Section 654 of the Penal Code does not apply to statutes which do not make an act or omission punishable in different ways, but which name different acts and different offenses, and punishes each act separately. People v. Mehra, 73 Cal. App. 162, 238 P. 802. If the act involved in one charge is necessarily involved in the other and is merely incidental to that charge, but one offense is committed, and it cannot be carved into two offenses in order to inflict a double punishment. People v. Mazzola, 99 Cal. App. 682, 279 P. 211. But where the two offenses are entirely separate and distinct and the one is not necessarily included in the other, a prosecution for the one is no bar to a prosecution for the other even though the same testimony may be applicable to both. In re O'Connor, 80 Cal. App. 647, 252 P. 730, 732. In that case, the court said: “While a single act may be an offense against two statutes, and thus constitute two crimes, if each statute requires proof of a fact additional to those involved in the other, an acquittal or conviction of either does not result in the defendant having been in jeopardy for the other.” In People v. Kerrick, 144 Cal. 46, 77 P. 711, 712, the court said: “To be ‘necessarily included’ in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof. ‘To entitle a defendant to the plea of autrefois convict or acquit, it is necessary that the offense charged be the same in law and fact.’ People v. Helbing, 61 Cal. 620.” In People v. Day, 199 Cal. 78, 248 P. 250, 252, the court said: “It may be conceded that, if the two counts stated precisely the same offense, an acquittal upon one count would operate as an acquittal upon the other count. * * * It is not the great similarity in most of the facts constituting separate offenses, but the presence of a fact necessary in one offense and absent in another, that determines whether offenses are separate.” Among other cases throwing some light on the matter before us may be cited the following: People v. Brain, 75 Cal. App. 109, 241 P. 913; People v. Johnson, 82 Cal. App. 411, 256 P. 273; People v. McFarlan, 126 Cal. App. 777, 14 P. (2d) 1066.

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 precise question here raised seems not to have been decided in this state, but an application of the above-mentioned rules to the facts of this case leads us to the conclusion that in pronouncing sentence on both of these counts the court did not violate either the constitutional provision or the statute relied upon.

The judgments and orders appealed from are affirmed.

I concur in that portion of the judgment of this court which affirms the judgment of guilty of murder in the second degree and the order denying the motion for new trial made on conviction of that offense. I cannot conclude that the defendant can be convicted of the offense of murder in the second degree and the additional crime of abortion where the death occurred prior to the institution of the prosecution and the one act of defendant on the same woman caused both the abortion and the death.

Of course, it is true that an abortion can be performed without death ensuing. In the instant case it is undoubtedly true that death was caused by infection occurring during the criminal act. It still remains true that defendant committed but one criminal act which was the direct cause of the death. A man may stab another and not cause death. If his weapon be unclean and poisonous germs be introduced into the wound and death from blood poisoning follow within a year and a day, he should be prosecuted for murder and not for that offense and assault with intent to commit murder. The greater offense should be held to include the latter.

BARNARD, Presiding Justice.

I concur: JENNINGS, J.

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Docket No: Cr. 311.

Decided: August 16, 1935

Court: District Court of Appeal, Fourth District, California.

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