PEOPLE v. WILSON (1944)

Defendant was accused by information of the violation of section 274 of the Penal Code in that on August 2, 1943, she feloniously employed an instrument upon the person of Marcella Anderson with the intent to procure a miscarriage. Having been found guilty by a jury, she has appealed from the judgment of conviction and from the order denying her motion for a new trial.

Mrs. Anderson testified that on July 31, 1943, she had talked to defendant, a physician, on the telephone, stating that she had missed one period; that defendant told her that the fee would be $100 and to come to her office on August 2. The witness went to defendant's office on August 2 with her husband. Defendant told her husband that since the patients were women he could not remain. The witness gave $100 to defendant and asked her what method she used and was told that it was a curettement. Defendant then placed the witness upon an operating table. Mrs. Anderson did not see any instrument but she felt something inserted into her vagina. She stated that defendant was in front of her, working between her legs. She felt a “motion of cleaning inside of her” and suffered pain. She was on the table about thirty–five minutes and during this time she heard a noise, “the sound the different things made, she laid down different things that she used that I felt inside of me”. After she left the operating table she felt weak. Defendant told her to take a dose of castor oil when she reached home. The witness then went downstairs where her husband met her and they went home. When she arrived home she continued to bleed and the next day she was taken to the hospital.

Harold Anderson testified that he was the husband of Marcella Anderson; that he went to the office of defendant with his wife on August 2 but that he was told to remain outside of the office because of the presence of women patients. He stated that he gave $100 to his wife and then went downstairs. He stated that he knew what his wife went to defendant's office for and when asked if he took her there for the purpose of having an abortion performed he stated, “well that was more or less up to her”.

Maynard Young, a special agent for the Board of Medical Examiners, testified that he was one of the arresting officers; that he found no instruments in defendant's office nor any records of her business for the past year.

Dr. Charles Malone testified that he is a physician and that he attended Mrs. Anderson at the General Hospital beginning August 4, 1943. He stated that he found a body in the uterus, that the patient “was about to lose the pregnancy conception which was in the uterus”. When asked concerning her condition he answered, “inevitable abortion”. He stated that it was his “opinion that the abortion was induced”. The witness further stated: “We cannot specify what has been used. The means of inducing an abortion are many and various. We can only say that there was some interference. I couldn't say whether it was an instrument or something else.”

Defendant denied that she had performed an abortion or curettement on Mrs. Anderson or that she had in any manner interfered with the pregnancy of Mrs. Anderson. She stated that she did not know that Mrs. Anderson was pregnant and that she had received only the sum of $10. She further stated that she attempted to make a bimanual examination of the vagina but was unable to complete the examination because “she was too sore and tender”.

The testimony of Marcella Anderson was not corroborated as required by law. A defendant cannot be convicted of the crime commonly called abortion upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence. Penal Code, § 1108. Nor can a conviction be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense and the corroboration is not sufficient if it merely shows the commission of the offense. Penal Code, § 1111. We need not consider whether the testimony of Harold Anderson would supply corroboration of the testimony of his wife, for he aided and abetted in the transaction and was an accomplice therein. There is nothing whatever in the testimony of Dr. Malone which connects defendant with Mrs. Anderson's condition. It might be inferred from his testimony that steps had been taken to bring about a miscarriage but in no way was defendant connected with the transaction by Dr. Malone's testimony.

It was ruled in the supplemental opinion in People v. Josselyn, 39 Cal. 393, 400: “An essential element in the crime is a criminal intent on the part of the defendant; and any testimony, in addition to that of the witness, Locke, tending to show such intent, would be a sufficient corroboration of her testimony to bring the case within the statute, even though she might not be corroborated in respect to the particular method employed to produce the abortion.” In People v. Wah Hing, 15 Cal.App. 195, 209, 114 P. 416, it was held that the “modified view” in the Josselyn case was the “correct view”. This rule is approved in People v. Lee, 81 Cal.App. 49, 53, 252 P. 763, and in People v. Gilman, 43 Cal.App. 451, 455, 185 P. 310. An application of the rule of the Josselyn case compels the conclusion that the record fails to disclose the requisite corroboration of the testimony of Mrs. Anderson. No inference can be drawn from the testimony of any witness except that of Mrs. Anderson, or possibly that of her husband–accomplice, that defendant was guilty of any criminal intent.

The trial court erred to the prejudice of defendant in admitting the testimony of the witness Maynard Young concerning a conversation which he had with defendant. It appears that the prosecution considered that it would assist in establishing the guilt of defendant by proof that the officers found no instruments in her office. In People v. Lee, supra, it was held that surgical instruments which had been found in the defendant's possession were admissible in evidence to show guilt notwithstanding it was admitted that the miscarriage of the prosecutrix was sought to be accomplished by administering medicine. It was held that it could be fairly inferred that the instruments would have been used in the subsequent treatment of the prosecutrix if she had continued to remain under the care of the defendant. In the present case we have the opposite situation, for the prosecution attempted to show the guilt of defendant by the fact that she had no instruments in her office. If the reasoning in the Lee case is correct, it would appear that the absence of the instruments in the present case is an immaterial feature. But the prosecution not only introduced evidence to show the absence of surgical instruments in defendant's office but in doing so it improperly brought before the jury a conversation which the officer had had with defendant in which the officer asked defendant the whereabouts of her instruments and she replied, “that those instruments had never been returned, we had taken them at the time of the previous arrest”. A motion was made to strike this testimony but the motion was denied by the trial court. Testimony concerning a previous arrest of defendant was clearly inadmissible. The testimony was improperly interjected into the case in an improper attempt to prove an immaterial fact.

The judgment and the order denying the motion for a new trial are reversed and the cause is remanded for a new trial.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.