Opinion
Rehearing Denied Aug. 12, 1930
Hearing Granted by Supreme Court Aug. 28, 1930.
Appeal from Superior Court, Los Angeles County; Emmet H. Wilson, Judge.
George E. Darrow was convicted of murder in second degree and he appeals.
Reversed and remanded. COUNSEL
C.V. Caldwell and John S. Cooper, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Alberta Belford, of Los Angeles, for the People.
OPINION
CONREY, P.J.
If the defendant is guilty of murder, such murder was committed in the course of an unlawful attempt to cause an abortion. This is murder of the second degree.
The grounds upon which appellant relies for a reversal of the judgment are: That the evidence is insufficient to establish the cause of the death of the alleged victim, one Mrs. Peterson; that the witness Smith was an accomplice, and that his testimony was not corroborated by other evidence tending to connect the defendant with the commission of the offense (Pen.Code, § 1111); that the court erred in certain instructions given to the jury; that the court erred in refusing instructions requested by defendant; that the court erred in some of its rulings on objections to evidence; that the court erred in refusing to consider the application of defendant for probation.
The death of Mrs. Peterson occurred on the 23d day of July, 1929. She was a married woman, not living with her husband. She was 23 years, old, and was the mother of two children. For some time prior to her death she had been on intimate terms with a 20-year-old youth named Henry Smith. It appears that at the time of her death this woman had been pregnant for about three months, and that this fact was a result of her intimacy with Smith.
Omitting for the present the testimony of Smith, it may clarify the case to first consider facts shown by the other evidence. The defendant in his own testimony states that in June, 1928, and prior thereto, he had treated Mrs. Peterson for illnesses of a different nature from the condition in question here; that on Thursday, July 18, 1929, she came to his office, and that Smith came with her; that defendant held a consultation with her alone in his private office, but that he made no examination of her at that time. On the afternoon of the following Saturday she and Smith came again and a second private consultation occurred between Mrs. Peterson and the defendant. At that time she told defendant that because of her association with Smith, and a delayed period, and also because of coughing, night sweats, and other symptoms, she was very much worried about her condition. No examination was made at that time. On Sunday evening, July 21, they came the third time to defendant’s office, and the defendant made a "bi-manual" examination of the pelvic organs of Mrs. Peterson. On Monday morning defendant made a further examination. He testified that Mrs. Gray, a nurse, was there, and also Smith was present; that owing to the nervous condition of the patient he was obliged to discontinue the examination without the use of the instruments which were to have aided in his examination. On Tuesday morning the examination was resumed, with no one present except Mr. Smith, Mrs. Peterson, and the defendant. Mrs. Peterson had remained over night in a room adjoining the office. The patient was placed on the examining table and covered with a sheet. At this point in the evidence the defendant gave an extended history of the transaction, in the course of which transaction the patient within a few minutes showed failing respiration and a failing heart action, and she died within the hour. Without extended repetition of this testimony it will suffice to say that, if the facts were as given in the testimony of the defendant, there was a threatened or impending abortion, not caused by any act of the defendant; that the defendant was not attempting to cause an abortion; and therefore that the defendant was not guilty of any crime.
The principal evidence relied upon by the prosecution to establish the cause of death is found in the testimony of Dr. Parsons, assistant autopsy surgeon in the service of Los Angeles county. Dr. Parsons performed a post mortem examination upon the body of Mrs. Peterson between 4 and 5 o’clock in the afternoon of July 23d, the day of her death. Upon the facts found by him, and which are quite fully stated in his testimony, he declared that in his opinion the death was caused by pulmonary embolism, following abortion. He did not find any evidence of a tubercular condition of the lungs, or any facts likely to have caused the death other than facts relating to the abortion. It was his opinion that at the time of the autopsy the woman had been dead not more than six or eight hours, and that the fetus had not been dead more than eight or ten hours. He found that the pregnancy was apparently normal in all respects except for the torn condition of the body of the fetus and the puncture of the membranes. It was his opinion that the injury to the fetus could not have been caused by the taking of drugs or in any way other than by the entrance of a foreign object into the uterus.
The nurse Mrs. Gray was called as a witness for the defendant. On Tuesday morning she did not arrive at defendant’s house until nearly 11 o’clock. At that time Mrs. Peterson was in the small bedroom next to the operating room and was unconscious. Dr. Darrow and Mr. Smith were administering artificial respiration by mechanical means, and Dr. Darrow also made a hypodermic injection into the arm of the patient. This injection, he says, was of digitalis.
Referring to the efforts made to strengthen the heart condition and to induce normal respiration, the defendant stated that on his own suggestion his wife telephoned for men to come with a pulmotor. When they arrived the patient was carried out on the mattress to the screen porch.
The witness Midkiff was one of the men who came with the pulmotor or inhalator. Some attempt was made to revive the patient by the use of this inhalator, but without success. The witness Frank B. Gompert, a deputy sheriff, arrived at the office of defendant at about 1:30 p.m. on the day of these transactions and made an examination of conditions existing on the premises. The body of the deceased was still lying on the rear porch, and the various persons heretofore mentioned were there. Among other things this witness testified that there was a sheet between the mattress and the body and that there was a blood spot on the lower part of the sheet; that on the stove in the kitchen there was a sterilizer in which the water was hot, but the fire was out. In the sterilizer there were various surgical instruments. These were identified by the witness and included a cervical dilator, a tenaculum, and forceps. According to the testimony of Dr. Parsons this pair of forceps was an instrument which could have caused the wound which he observed on the lip of the cervix of the uterus. Referring to some of these identified instruments he testified that they are instruments such as are used in surgical practice for the performance of an abortion or miscarriage. The several instruments were described, together with the manner and purpose of their use.
From the testimony to which we have referred and which is much more fully stated in the transcript we are of the opinion that without regard to the testimony of the witness Smith the evidence is sufficient to prove that the death of Mrs. Peterson was caused by and resulted from an attempt, either by herself or some other person, to bring on an abortion, she being at that time a pregnant woman; also that the condition of the woman at that time was not such that the procuring of the miscarriage was necessary to preserve her life. Thus the corpus delicti was established; that is to say, the crime of abortion or attempted abortion had been committed (Pen.Code, § § 274, 275), resulting in death.
But it is contended that, even if the crime of abortion had been attempted or committed, the evidence is insufficient to sustain the defendant’s conviction as the person who performed the guilty act; that the witness Smith was an accomplice, and that his testimony was not corroborated in the manner required by law. On behalf of appellant it is contended that the corroborating evidence is only of the kind which suffices to raise merely a suspicion of the defendant’s guilt. In People v. Kempley, 205 Cal. 441, 455, 456, 271 P. 478, 484, numerous authorities on the point are cited, and the rule is restated that corroborative evidence is insufficient when it merely casts a grave suspicion, upon the accused. But the court also quotes with apparent approval an earlier decision wherein it is stated that, although more is required by way of corroboration than to raise a mere suspicion, "yet the corroborating evidence is sufficient if it, of itself, tends to connect the defendant with the commission of the offense, although it is slight, and entitled, when standing by itself, to but little consideration."
Applying to the present case the law as thus declared and approved by the Supreme Court, we are satisfied that the corroborating evidence not only shows the commission of the offense and some of the circumstances thereof, but also includes evidence which, considered entirely separate and apart from the testimony of the accomplice, is sufficient, in its legal force and effect, to connect the defendant with the commission of the offense. On the other hand, there was evidence quite sufficient, if believed, to have justified an acquittal. Thus a case is presented, where errors which might interfere with the defendant’s right to a fair trial should be closely scanned.
The first and most important point urged by appellant in relation to the court’s instructions to the jury, and refusal to give instructions requested by the defendant, rests upon the fact that the court did not directly instruct that Smith was an accomplice, but instead thereof left the jury free to determine that question. We are of the opinion that the evidence did not conclusively establish the relation of Smith to the defendant as that of an accomplice. This being so it was proper to submit that question to the jury, together with an appropriate instruction stating the rule relating to the corroboration of the testimony of an accomplice. Smith testified that Mrs. Peterson told him she wanted to go to the defendant and have an abortion performed; that he went with her to the doctor’s office; that the first interview between Mrs. Peterson and the defendant was held in the private office, Smith not being present; that afterwards the defendant asked him if he would be able to take care of the financial end of the matter, which would amount to $150; that at the second visit he paid the defendant $90. The fact that according to his own testimony Smith went with Mrs. Peterson to the defendant’s office for the purpose which she said that she had in mind, and that Smith remained there while the defendant did whatever was done by him in the course of the affair, is evidence strongly tending to place Smith in the relation of an accomplice in the commission of the crime. But at the time when these instructions were given to the jury the court had before it other evidence which, if believed, would have modified the relation of Smith to the case. The defendant stated that formerly he had treated this woman for lung trouble because of symptoms pointing toward tuberculosis; that at the time of the interviews on and following July 18th he had not yet determined or ascertained the condition of the woman as to pregnancy; that Smith never at any time paid him any money. Now, considering that in the testimony of Smith it does not appear that the nature of the service to be performed was discussed between Smith and the defendant, it would seem that the question of payment or nonpayment of money, or agreement to pay money, by Smith to the defendant, for the stated or understood purpose of abortion, would be of importance in determining the question as to whether or not Smith had solicited or requested that an abortion be performed. The evidence on the subject was not so undisputed or conclusive that it had become merely a question of law as to whether or not Smith was an accomplice. While Smith was present when defendant did whatever he did do to the patient on the operating table, it was an open question of fact for the jury to determine not only as to whether or not an abortion was being committed at that time, but also as to whether or not Smith knew what was being done.
We now come to the assignments of error in the rulings of the court on objections to evidence. Over the objection that the question related to immaterial matters, the court admitted testimony of the witness Smith to the effect that on Tuesday morning, July 23d, after they had taken the deceased out of the operating room and into the bedroom, he smelled alcoholic liquor on the breath of the defendant. Over like objection similar questions were asked and similar answers given in the testimony of three other witnesses. The witness Midkiff stated that after his arrival on the premises he smelled intoxicating liquor on the breath of the defendant, and that the defendant was very unsteady, hanging on the door sills and chairs as he walked from room to room. The witness Gompert stated that upon his arrival on the premises he observed that the defendant had an alcoholic breath and (in substance) that the defendant’s condition was that of a man who had been drinking alcoholic liquor. The witness Gauldin stated that the defendant’s breath smelled very strongly of alcohol. All of this testimony was immaterial and was irrelevant to the case when tested by the prosecution’s theory of the action. We think that, as the Attorney General suggests, upon proof that the defendant while in a state of intoxication performed acts which caused the death of Mrs. Peterson, the defendant might have been guilty of manslaughter even though he was not performing or attempting to perform an abortion. Pen.Code, § § 346, 192. But while evidence tending to prove intoxication would have been admissible for the purpose of proving that the defendant was guilty of manslaughter by reason of criminal negligence, the record shows that the prosecution had an entirely different purpose, for it was not attempted to prove by any further evidence that the defendant in performing surgical acts on the body of the deceased was in a condition of intoxication. And it may be that, as stated by other witnesses, the defendant had been injured in an automobile accident and as a result thereof was unsteady in walking and generally found it necessary to use a cane. The whole weight of the prosecution was being directed to proof of the commission by the defendant of the crime of murder of the second degree. The court did not instruct, nor was it requested that it instruct, the jury on the subject of criminal negligence. The prejudicial effect of the testimony received (and, let it be said, correctly admitted), concerning the defendant’s "alcoholic breath," was further emphasized by other and clearly improper evidence. The witness Gompert was permitted to testify that he found in defendant’s dining room a bottle of pentabromide, and that the defendant admitted that he had been using this drug. Dr. Parsons was permitted to testify that the general action of pentabromides would be to "dull the senses." There was no attempt to show that the defendant had used the drug on July 23d, or at any stated time. The objections to the questions relating to the pentabromides undoubtedly should have been sustained.
The witness Smith, in his testimony concerning his payment of $90 to the defendant, named Saturday, July 20th, as the time of payment. The prosecution, in the course of examination of the witness Gompert, introduced certain evidence about this money, to which evidence the defendant objected. It is now urged as prejudicial error that the court overruled the objections. Gompert testified that at the time when defendant, on July 23d, was arrested, Capt. Bright asked defendant whether or not Smith gave him any money to have this alleged operation performed; that defendant said he had not; that Smith was then called in and said that he did pay the defendant $90 for the operation; that defendant then said that Smith was mistaken; that Bright asked the defendant if he had any money with him, to which the defendant replied that he had a little but did not know how much. Bright then asked, "Have you the money Smith gave you?" Answer, "No, I haven’t." The defendant was then asked to empty his pockets. The defendant did this and produced only a few cents in change and said that was all the money he had. The defendant was then searched and they found $55 in currency. Bright then asked if it was part of the money Smith gave him. Defendant said it was not. In response to a further question as to where he had got it, defendant mentioned certain named or described persons. Smith had said that the money he gave included a $50 bill. The money found on the defendant did not include any $50 bill but was of smaller denominations. No evidence was produced identifying this money as money received from Smith, or showing that it came to him in exchange for bills received from Smith. Nevertheless, the court, overruling objections of the defendant, admitted testimony of witnesses which, at least in part, was to the effect that the several witnesses had not made the payments attributed to them by the statements made by the defendant to the officers. The objections to this testimony should have been sustained. In the absence of any evidence that any of the money found in possession of the defendant on July 23d was identical with money which Smith claimed to have paid to the defendant on July 20th, evidence of misstatements made by the defendant concerning the sources from which he had received the bills found on his person on July 23d was wholly irrelevant to the purpose for which such evidence was offered and received, viz., to aid in proof that Smith actually had paid $90 to the defendant.
The nurse, Mrs. Gray, called as a witness by the defendant, testified concerning the facts occurring at the times when she was present on July 22d and 23d. She was "a practical nurse," not a trained nurse. On the direct examination she was not asked for her opinion on any subject. But on cross-examination she was asked if, during the time that defendant had Mrs. Peterson on the table, she formed the opinion that he was about to commit an abortion upon the woman. Objected to as improper cross-examination and as calling for the conclusion of the witness. Overruled. "A.: No, sir. I knew he was making a thorough examination of her. Q.: You did not suspect the case was an abortion case?" Same objection, as improper cross-examination. Overruled. "A.: I might have suspected it, yes, sir. Q.: You did suspect it, did you not?" Same objection. Overruled. "A.: Yes, sir." The witness then was asked if she "knew that it was an abortion case." After she answered that she did not know it, the next question was, "But you suspected so?" The answer was "yes." The objection made to this line of examination should have been sustained. The district attorney had no more excuse for these questions on cross-examination than he would have had on direct examination, if the witness had been called by him for that purpose. The case was, indeed, "an abortion case." But an important question in dispute was whether the acts causing the abortion were done by the defendant, or had been done before the defendant undertook what he claims was only an examination of the condition of the patient. By this testimony the jurors were invited to infer and believe that, according to the opinion or suspicion of this "practical nurse" of no stated knowledge or skill, the defendant was committing an abortion. The error of the rulings, and the prejudicial effects of such testimony, are plainly apparent. In view of the conflict in the evidence on the question as to whether the defendant was actually engaged in any attempt to cause an abortion, it may well be that the jurors were unduly influenced by the improperly received evidence of the "suspicion" of the nurse. It was very short step for the jurors to then conclude that this was more than a suspicion. Having reached this conclusion, all further doubts might easily be resolved against the accused.
The judgment and order are reversed. The cause is remanded for a new trial.
We concur: HOUSER, J.; YORK, J.