PEOPLE v. MacEWING (1954)

The appellants were convicted of conspiracy to commit abortion on the person of one Gertraut Frawley, and of the substantive offense defined in Section 274 of the Penal Code.

It is the main contention of appellants that there was insufficient corroborative evidence to connect the defendants with the offenses charged, and that the trial court incorrectly instruted the jury on this issue. Complaint is also made that ‘The Court erred in permitting the District Attorney to refresh the memory of an absent witness'.

The record discloses that appellant MacEwing is a licensed physician and surgeon; that appellant Hewitt was employed as a painter by the Douglas Aircraft Company and had worked the same shift as the complaining witness Gertraut Frawley. Hewitt and Gertraut Frawley, had exchanged rides to and from work, and on or about April 5, 1953 at a motel, participated in two acts of sexual intercourse. Mrs. Frawley later consulted a Dr. Johnson and was informed of the existence of pregnancy. On informing appellant Hewitt of this fact, Hewitt stated, ‘There is a doctor I know, I have worked for him and he has performed an abortion on my sister and I will call him up and make arrangements with him’. Thereafter Hewitt said, ‘I have talked with the doctor and there's something what can be done but you have to go up there and talk to him’, and gave Mrs. Frawley a paper containing Dr. MacEwing's name, address and phone number. Hewitt then stated, ‘I have made an appointment for you with Dr. MacEwing for Monday, the 17th of August, 9:00 o'clock in the morning’.

On the specified date Mrs. Frawley went to Dr. MacEwing's office at 1081 Atlantic Avenue, in Long Beach, and described the office, its equipment, nurses, etc., in some detail. The trial judge and jury viewed the premises during the progress of the trial. According to Mrs. Frawley's testimony, Dr. MacEwing entered the examination room after the complaining witness had been placed on an examination table, inquired who had referred the patient and was told the ‘Mr. Hewitt’ had done so, and that the patient was pregnant, ‘I don't know exactly how far’. After making a manual examination, the doctor said nothing and left the room.

Mrs. Walling, a nurse, then entered the room and informed Mrs. Frawley that the price would be $400, which amount would have to be in cash. Thereafter, the complaining witness met and talked with appellant Hewitt at the doctor's office, and an unsuccessful attempt was made to get the price reduced. Hewitt claimed to be unable to give financial aid, and upon obtaining the necessary money Mrs. Frawley returned alone to Dr. MacEwing's office on August 20, 1953 for an appointment previously made. The nurse, Mrs. Walling, apparently took charge of the patient, received the money, administered hypodermic shots and otherwise prepared Mrs. Frawley, who was directed to get on an operating table.

At this point Dr. MacEwing entered the room and said, ‘Well, you are too far gone. We cannot do any surgery on you, we have to do it the hard way’. Mrs. Frawley described MacEwing as then wearing a mustache, although at the trial appellant did not have a mustache. Mrs. Walling placed a black cloth over Mrs. Frawley's eyes; somebody walked in and Mrs. Frawley felt an instrument inserted in her private parts and experienced much pain. After the unseen person had left the room, the blindfold was removed and Mrs. Frawley was put to bed. About 10:00 p. m. that evening Mrs. Frawley drove home and the next day talked to Dr. MacEwing by telephone who inquired, ‘Don't let't beat around the bush. Did you miscarry yet? Yes or no?’, to which Mrs. Frawley replied, ‘No’, and the doctor said, ‘Well, don't be alarmed. * * * I see you Monday’.

On returning to the doctor's office on Monday as instructed, complaining witness was given further shots by a Miss Perry and by Dr. MacEwing, which Miss Perry said were given to ‘bring on cramps'. Finally a cab was called to take Mrs. Frawley home, and the patient left in a hallway to await the cab. The cabmen testified to having picked up the complaining witness in front of Dr. MacEwing's office and observed that Mrs. Frawley looked pale and disheveled, in a hurry, nervous, and appeared ill. The expected miscarriage occurred that evening, and thereafter the patient was sent to the hospital by a Dr. Johnson who had originally diagnosed the pregnancy.

There is no merit in appellants' contention that there was no sufficient corroboration of the complaining witness' testimony, and that therefore the jury should have been advised to acquit the defendants. The record discloses ample evidence, which if believed by a jury, furnishes sufficient corroboration.

Section 1108 of the Penal Code, reads: ‘Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein * * * the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence’. (Italics added.)

Apparently the latest case law on this subject is that contained in People v. Reed, 128 Cal.App.2d 499, 501, 275 P.2d 633, 634, where the reviewing court says: ‘If such (corroborating) evidence connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact that the accomplice is telling the truth it is sufficient’, citing People v. Wilson, 25 Cal.2d 341, 153 P.2d 720, and People v. Reimringer, 116 Cal.App.2d 332, 253 P.2d 756. In the same advance sheet is found another abortion case containing similar expression of the law, namely, People v. Berger, 128 Cal.App.2d 509, 513, 275 P.2d 799, 801, where it is said that ‘The necessary corroboration may consist of inferences from the circumstances surrounding the criminal transaction’. The Berger case further says that “Whether the corroborating evidence by itself is as compatible with innocence as it is with guilt, is a question for the trier of fact, not for the reviewing court”, citing People v. Estes, 99 Cal.App.2d 745, 222 P.2d 454, and People v. Allen, 104 Cal.App.2d 402, 231 P.2d 896.

At this point it may be noted that, although a woman's husband may well be an accomplice, the woman submitting to an abortion is not an accomplice of the person performing the abortion, or of the husband, within the meaning of Section 1111 of the Penal Code, providing that ‘a conviction cannot 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.’

The word ‘corroboration’, quoting from the case of People v. Griffin, 98 Cal.App.2d 1, 27, 219 P.2d 519, 535, ‘in its etymological sense denotes ‘a strengthening or conforming.’ (Webster's New International Dictionary, Second Edition.) It is essentially a relative term and refers to some antecedent which it is said to strenghten or fortify. The jury in determining the question of corroboration must obviously compare the residue of the other evidence with the accomplice's testimony, in order to ascertain the truthfulness of the latter'. This definition would seem to apply with equal force to the corroboration of an abortee.

There is no requirement in the law, as appellants' briefs seem to imply, that the prosecution must prove its entire case by independent corroborative evidence, and that unless and until this is done, the abortee's testimony cannot be considered as having any weight or effect. Such argument misses the entire point and meaning of the term ‘corroboration’. As indicated by Section 1108 of the Penal Code, hereinbefore cited, the only requirement is that the defendant cannot be convicted unless ‘she (the abortee) is corroborated by other evidence’. As seen from the cited cases, such evidence may be circumstantial, and it need only be sufficient to reasonably satisfy the trier of fact that the abortee is telling the truth. The appellants' argument would seem to reverse this process and make the abortee's testimony merely corroborative of what must be proven by independent evidence. Such is not the law.

The trial court gave the following instruction offered by appellant MacEwing: ‘The legal test you must apply in determining whether the testimony of Frawley was corroborated is to eliminate the testimony of Frawley and examine the other evidence to determine if such other evidence, standing alone and without support from the testimony of Frawley, fairly, logically, directly and immediately tends to connect the defendant with the commission of the alleged crimes'.

Appellants complain that the trial court erroneously ‘modified and contradicted the above statement of law’ by adding thereto the statement: ‘The corroborating evidence may take interpretation and direction from the testimony of Frawley to give it value and meaning’.

A second instruction relating to the same matter is likewise criticized, reading as follows: ‘The test of the corroboration of an abortee is whether the evidence other than such testimony of Mrs. Frawley, by reasonable inference, connects the defendant with the crime, or whether it satisfies the jury that the woman is telling the truth’.

In all this there appears to be no reversible error. Following the usual rule that instructions given must be read and considered as a whole, it seems clear that the jury could not have understood the trial court to mean anything other than that, in order to secure a conviction, the prosecution must present adequate corroboration of the complaining witness' story. The language used is neither inconsistent with nor contrary to the rules of corroboration as expressed in the cited cases.

Appellants' contention that ‘The Court erred in permitting the District Attorney to refresh the memory of an absent witness', is thus explained and answered in respondent's brief: ‘Appellants state that the jury was permitted to consider as evidence written statements of Miss Perry (assistant in Dr. MacEwing's office) made at the police station on the night of the arrest. Respondent submits that this is not correct. The District Attorney read the testimony of Miss Perry given at the preliminary examination inasmuch as she was absent from the state and could not with due diligence be found within the state. It was stipulated that she could not be found and that a diligent search had been made. (See Penal Code Section 686.) The District Attorney contended that the People were entitled to read the entire testimony given at the preliminary as it was there elicited in order to put it completely before the jury’.

The record discloses that this witness, at the preliminary examination, repeatedly answered, ‘I don't remember’, and ‘I don't recall’, when questioned concerning the giving of shots to Mrs. Frawley and other matters which were contained in a written statement in Miss Perry's handwriting delivered to the police officers at the time of arrest. While admitting the authenticity of the handwriting, the witness claimed to have been coerced into making it. It is also claimed that the trial court should have limited the effect of such evidence, although no request for such an instruction was offered.

In view of the evidence disclosed by the record, it does not appear that appellants have suffered any prejudice in this respect which would justify a reversal. As stated in appellant MacEwing's brief, ‘The defendants offered no evidence at the close of the prosecution's case. They relied upon the legal defense offered by Section 1108 of the Penal Code. The fundamental issue was the sufficiency of the evidence to corroborate the witness Frawley’. Neither Dr. MacEwing nor the defendant Sam Hewitt took the witness stand. A survey of the record indicates that both defendants received a fair and impartial trial, that there is substantial evidence in support of the judgment of conviction, and that no prejudicial error occurred.

The judgment is affirmed.

I concur. However, I do not subscribe to the theory advanced in some of the cases in the foregoing opinion that the corroborative evidence is sufficient if it connect the defendant with the crime in such a way as reasonably to satisfy the fact-finding body that the accomplice is telling the truth. The statute is specific in its meaning that before a jury may even consider the credibility of an abortee (or accomplice) there must be in the record other evidence which of itself, ‘shall tend to connect the defendant with the commission of the offense’. The question is not whether the corroborative evidence tends to convince the jury that the abortee (or accomplice) was telling the truth, but, as was said in People v. Morton, 139 Cal. 719, 725, 73 P. 609, 611, after eliminating the evidence of the accomplice, does an examination of the evidence of the other witnesses reveal inculpatory evidence, ‘tending to connect the defendant with the offense’. If so, but not otherwise, the accomplice is corroborated. That this is the true test was the holding in many cases, including People v. Davis, 210 Cal. 540, 293 P. 32; People v. Shaw, 17 Cal.2d 778, 808, 112 P.2d 241; People v. Buffum, 40 Cal.2d 709, 256 P.2d 317; People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29; People v. Reingold, 87 Cal.App.2d 382, 197 P.2d 175.

However, from a careful review of all the circumstances urged as constituting corroborative evidence, I am convinced that in the case now engaging our attention they tended to connect the accused with the commission of the crimes charged against him and that such circumstances measured up to the required substantial corroboration.

DORAN, Justice.

DRAPEAU, J., concurs.