Peckham v. United States

• Decision Date: 19 November 1953
• Docket Number: No. 11487.,11487.
• Citation: 93 US App. DC 136,210 F.2d 693
• Parties: PECKHAM v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 136, 210 F.2d 693 (1953)

PECKHAM v. UNITED STATES.

No. 11487.

United States Court of Appeals District of Columbia Circuit.

Argued June 24, 1953.

Decided November 19, 1953.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mr. Albert J. Ahern, Jr., Washington, D. C., for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Arthur J. McLaughlin, Asst. U. S. Atty., and William J. Peck, Asst. U. S. Atty. at the time of argument, were on the brief, for appellee. Messrs. Charles M. Irelan, U. S. Atty., Joseph M. Howard, William E. Kirk, Jr., and William R. Glendon, Asst. U. S. Attys., at the time the record was filed, also entered appearances for appellee.

Before EDGERTON, BAZELON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

Appellant was indicted in two counts under the abortion statute, D.C.Code § 22-201 (1951), 31 Stat. 1322.¹ The first count alleged the commission of the offense in May 1951; the second the commission of a like offense in January 1952.² The same woman was involved in each instance. At a jury trial appellant was convicted on the first count and acquitted on the second. His appeal raises a number of questions.

First we consider whether the indictment was good though it omitted negative averments that defendant, a licensed and practicing physician, did not procure the miscarriages to preserve the woman's life or health. See definition of the crime, n. 1, supra. In Williams v. United States, 78 U.S.App.D.C. 147, 138 F.2d 81, 153 A.L.R. 1213, where the indictment contained the averments this court held it was unnecessary to prove them. We adhere to the ruling there made that the provisions of the statute which give rise to the problem are intended to furnish the defense an opportunity for justification and are no part of the description of the offense required to be proved by the prosecution. Not being essential elements of the offense they may be omitted from the indictment as well as from the proof. See Rule 7(c), Fed.R.Crim.P., 18 U.S.C.A.

Prior to trial the accused moved for return of certain articles he owned, asserted to have been unlawfully seized from his office, and for their suppression as evidence against him. See Rule 41(e), Fed.R.Crim.P. He claimed, inter alia, that the search warrant pursuant to which the articles were obtained had been issued without probable cause. In ordering return of some of the articles as agreed by the Government the court held open the question of probable cause pending location of an affidavit said to have been furnished by Mary Lee Ott as the basis in part for issuance of the warrant. Defense counsel asked for opportunity, if the affidavit were located, to see it before the court ruled. After it was found the court, without affording counsel an opportunity to make further objection, held the search warrant valid, inserting his ruling in the transcript at a place which had been left for that purpose.³ The defense filed a motion for reconsideration on several grounds, including the assertion that the Ott affidavit was not proved to have been executed prior to issuance of the warrant. The trial judge refused to pass upon the matter or to continue the trial so that it could be disposed of by the judge who had heard the motion to suppress.

We think defendant was and still is entitled to an opportunity to complete his attack upon the search warrant after the Ott affidavit had been located. The failure to afford such opportunity, however, is not itself ground for a new trial. Only if the hearing on the validity of the warrant should result in a ruling that it was not valid and accordingly that material evidence should have been suppressed would a new trial be required.⁴ See Coplon v. United States, 89 U.S.App.D.C. 103, 114, 191 F.2d 749, 760, certiorari denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690.

Prior to trial the defense moved that the Government be required to elect upon which of the two counts it would proceed. Since the offenses are of the same or similar character they were validly joined in the same indictment. It was not error therefore to overrule the motion when it was presented. Rule 8(a), Fed.R.Crim.P. See, also, Rule 13, and Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23. If thereafter "prejudice developed and was not cured by requiring an election or by other relief" material error would afflict the trial, Dunaway v. United States, supra 205 F.2d at page 24. But the accused was acquitted on one count and a new trial is granted as to the other. Accordingly the question of prejudice for failure to require an election is eliminated.

The principal witness against the accused was Mary Lee Ott, upon whom the abortions are alleged to have been procured. On her cross-examination it developed that in 1950 she had been a patient in the psychiatric ward of the United States Naval Hospital, Bethesda. While admitting that she had been in this ward she denied having received psychiatric treatment. The defense sought to show through an attache of the hospital, who had brought her records to court in response to a subpoena duces tecum, that she had undergone treatment at the hospital for mental trouble. The records as a whole extended back to December 1947 and the last entry was September 13, 1950. The court would not permit proof in this manner of actual psychiatric treatment, assuming the records would have shown it. Since the evidence was offered only on the question of Mrs. Ott's credibility as it might be affected by her mental condition at the time she testified, and twenty months had elapsed since the alleged treatment there was no abuse of discretion in excluding the evidence.⁵ See State v. Hayward, 62 Minn. 474, 496, 65 N.W. 63, 70; Ellarson v. Ellarson, 3d Dept., 198 App.Div. 103, 190 N. Y.S. 6.

In January 1952 shortly after the second abortion was said by the complaining witness to have occurred, she entered Mt. Alto Hospital in Washington. A doctor who examined her there testified that in his opinion she had peritonitis secondary to an induced abortion. In so testifying he refreshed his recollection from hospital records. On cross-examination he said he did not rely entirely upon these records, that in treating the patient he studied her entire chart in considerable detail. The court permitted defense counsel to see only those portions of the records which the witness used to refresh his recollection. These included, however, entries that in 1947 there had been an abortion at six weeks, in 1948 "a term still birth", and in 1949 "full term living child", also entries regarding the patient's recent medication of herself and her denial of instrumentation. All of this was disclosed to the jury but the defense was not permitted to see the whole file, the court considering it confidential.

It is contended that the doctor in giving his opinion as to an induced abortion should have been subject to fuller cross-examination on the basis of all records which had been available to him. But his opinion related only to the second count, of which the accused was acquitted. Obviously this removes the basis for claiming error as to the first count, which is all that is before us.

The accused took the stand in his own defense. In cross-examining him the prosecution sought to elicit his conversations with his own attorney, to show that he and his attorney had intended to claim falsely that he had not seen the prosecuting witness at all in May 1951. As the trial proceeded, however, defendant actually testified he saw her twice early in May, though not on May 7th as she said and when in fact he was a patient in a hospital. On objection by the defense the attempted cross-examination about conversations of defendant with his attorney was not permitted. The prosecution then asked defendant if he had heard his counsel in his opening statement say the defendant never saw the complaining witness until January 9, 1952. Defendant was permitted to answer and denied having so heard. The prosecution argued to the jury that this testimony conflicted with counsel's opening statement, erroneously attributing to the latter the following: "I will prove that the first time this defendant ever saw this girl was on May the 9th" (no doubt intended by the prosecutor as January 9). After the jury retired they requested that defense counsel's opening statement in this regard be read to them. This was done over defense objection.

We see no error growing out of these incidents. If the jury had been led to believe defense counsel had said in his opening statement the accused had never seen the prosecuting witness until January 1952, its actual content read to the jury disabused them, for it showed this had not been said. There is no reason to suppose the jury were misled in interpreting the factors involved, namely, what was contained in the opening statement, the actual testimony defendant gave as to seeing Mrs. Ott in May 1951, Mrs. Ott's own testimony, and the questions and arguments of counsel. And we perceive no error in permitting defendant to be asked, and to answer, what he heard his counsel say to the jury. It is true, as appellant points out, the opening statement was not evidence; but it was an occurrence in the presence of defendant and to permit him to be questioned about it was not to treat it as evidence.

There was testimony by an officer that at police headquarters after the arrest he talked with defendant regarding an abortion upon Mrs. Ott and he responded, "No answer", "No statement". On the stand defendant was cross-examined closely about this in the effort to lead the jury to believe he would have denied guilt if he were innocent. No point is made on appeal as to possible error in the original admission of the "No statement" evidence through the officer.⁶ The contention now is that prejudice resulted in permitting defendant to be cross-examined as to why he would make no statement to...