People v. Ballard

• Decision Date: 13 February 1959
• Docket Number: Cr. 6222
• Citation: 335 P.2d 204,167 Cal.App.2d 803
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Edgar BALLARD, Defendant and Appellant.

Page 204

335 P.2d 204

167 Cal.App.2d 803

PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Edgar BALLARD, Defendant and Appellant.

Cr. 6222.

District Court of Appeal, Second District, Division 1, California.

Feb. 13, 1959.

Rehearing Denied March 11, 1959.

Hearing Denied April 8, 1959.

Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Arthur C. de Goede, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment and order denying the defendant's motion for a new trial upon two counts of abortion.

In count II of an information filed by the district attorney of Los Angeles County the defendant was charged with performing an abortion upon Martha Frances Gresham on June 10, 1957, and in count III thereof he was charged with performing an abortion on Alice Hankerson Frank on July 12, 1957. A jury heard the evidence and found the defendant guilty on both counts. The defendant's motion for a new trial was denied. The defendant was sentenced to the state prison, the sentences to run concurrently. Sentence was then suspended and the defendant was granted probation for six years on condition, among others, that he pay a $1,000 fine.

It may be well to say at the outset in this case that a great deal of misunderstanding would be avoided in abortion matters if they were considered in the light of the fact that an abortion is not necessarily, in and of itself, an illegal procedure or act. In other words, not all abortions are illegal.

The defendant is a medical doctor practicing his profession in an office in Beverly Hills and at his home in Reseda. He received his bachelor's degree from the University of Washington, graduated from the medical school at Stanford University, worked for one and one-half years in the Department of Obsterics and Gynecology at Stanford, went to Harvard University for a year on a scholarship and received a master's degree. He was appointed as a medical officer for the California State Department of Health. He has been employed as a Divisional Director of the Los Angeles City Health Department. During World War II he served as a doctor in Walter Reed Hospital and was in charge of a hospital in Africa. He taught at the University of California and also at the University of California at Los Angeles. He has delivered hundreds of babies and has written many articles for various magazines and newspapers.

The facts of this case are essentially as follows: Martha Cresham called and talked with the defendant on May 8, 1957, over the telephone. She said she had a problem, but did not elaborate upon what the problem was. Mrs. Gresham, with her three-year-old boy, went to the doctor's home office in Reseda on May 10, 1957. See told the doctor that she thought she was pregnant and that she understood he could take care of her. The defendant took her blood pressure and pulse and got some history of her background. See told the doctor that she had been and was very nervous; that she had three children who lived with her; that she had had two miscarriages, and that she had considerable trouble throughout the years with her menstrual periods; that she had seen doctors from time to time about, and had received shots because of irregularity of her menstrual periods, and that her last menstrual period had been about March 18, 1957. He told her that he did not think she was pregnant and that her nervousness and other conditions might very well have caused the delay in her menstruating. The doctor gave her some pills for her nervous condition and an injection of some medicine.

She insisted that she wanted a laboratory test and indicated from her actions dissatisfaction with the diagnosis of the doctor. She was then sent by the doctor to an independent laboratory where a so-called rabbit test was made upon Mrs. Gresham on May 14, 1957. About three days later she called the doctor to ascertain the results of the rabbit test at the laboratory and was told by the doctor that the laboratory representative had advised him that the test was negative. He again told her that he did not think she was pregnant. She continued to believe that she was pregnant, and again went to see the doctor. Without informing the doctor, she went to the laboratory again on or about May 29, 1957, and had the technicians at the laboratory run another rabbit test. She then told the doctor about having the second laboratory test and wanted to know if he could get the results of such test. The doctor got the test result, which was positive, and told her of the laboratory's finding. The doctor, however, advised her that in his opinion, in spite of the report, she was not pregnant.

About June 3, 1957, she went to the doctor's office in Reseda and he examined her and then told her that it was his then belief that she was pregnant. She explained then that she was in trouble because her husband was in the City of Hope and had had no access to her, and that it was another man's child, namely a man by the name of Cayce. At first she had told the doctor that the child was her husband's child. She asked the doctor if he could help her, and she testified that he stated that he could and that the cost would be $300 to abort her. She further stated that she would try to get the money, and he said that he could not do it without the cash.

On about June 10, 1957, she again went to the doctor's home office accompanied by Patrick Cayce. She stated that the three of them then talked about the money, or lack of money. The doctor wanted cash. Cayce said that he could give the doctor a promissory note payable on an installment basis, to which the doctor finally agreed. A note was made out in the principal sum of $300 and signed by Cayce and returned to the doctor. Cayce then left the room which was used as the doctor's office and went to the front room of the house.

The defendant gave Mrs. Gresham an injection in the arm, which made her drowsy. She undressed and put on a hospital gown and then went to the bathroom. She returned, got on the examining table and was lying on her back with her legs spread apart. The doctor apparently cleansed her with some soap solution. She then felt something in her 'privates' which she said felt as though she was being opened up with some sort of an instrument. She felt a pulling sensation up into her stomach. Later the doctor got up and told her to continue to lie upon the table. He asked Cayce to go to a store and get a sanitary belt. Cayce did so and gave it to the defendant. Mrs. Gresham never saw any instrument in the hands of the doctor, and saw no blood at the time of the examination.

The doctor told her to call him later, and to make an appointment after she stopped flowing. Except as to her nervous condition, Mrs. Gresham, from a layman's point of view, appeared outwardly to be in good health when she went to see the doctor. She was not pregnant after June 10, 1957. She had cramps after she left the doctor's office and blood flowed for six weeks thereafter.

Mrs. Gresham did not see any other doctor between June 10th an July 30th, and was not examined by any doctor at the request of the prosecution. Cayce wrote a check on June 17, 1957, for $50 as a part payment on the promissory note, and mailed the check to the doctor. Cayce testified that he never received a letter from the doctor or the check back. However, the fact is that the check was received in evidence without objection, and shows on its face that it was written on '6-17-1957' and that it was cancelled as 'Paid 6-19-57.' In the latter part of July, Cayce talked with the doctor and inquired whether Mrs. Gresham was all right. The defendant told Cayce of his arrest and asked for the balance upon the promissory note.

Cayce testified, among other things, that he went with Mrs. Gresham to the office of the doctor on June 10, 1957, and that the three of them talked together. Cayce stated that the doctor said that he wanted cash for the abortion. He further testified, in effect, that Mrs. Gresham had said that he, Cayce, was 'the father of any child that she expected.' Cayce also stated, without reservation, that he had first met Mrs. Gresham some time in May of 1957. The court sustained the objections of the prosecution to any questioning of Cayce as to whether he was the father of the expected child. It is difficult for this court to understand just how Cayce could have admitted, in effect, to being the person who brought about the alleged pregnancy of Mrs. Gresham in March of 1957, as represented by the prosecution, when he, Cayce, apparently, by his own testimony, did not even know Mrs. Gresham until May of 1957.

Alice Hankerson Frank, referred to in the third count, was an 'operator' for the State Board of Medical Examiners. She had been married on July 5, 1957. She attended school of some sort and at the time of trial apparently was teaching school in El Monte. She stated that on July 11, 1957, she called the defendant on the telephone supposedly from San Francisco, and made an appointment for the next evening. In that conversation she said that she told the doctor she was three weeks over her menstrual period and that she had been referred to him by a girl friend in San Francisco. Mrs. Frank's further testimony indicates that she made inquiries about how much money she would need, and that the doctor stated, in effect, that $300 would be all right. Mrs. Frank told the doctor that her boy friend had the money, and that he would bring her down from San Francisco.

Mrs. Frank first saw the doctor in the evening on July 12, 1957, at his home office. She went there with Robert Truitt, an investigator for the State Board of Medical Examiners. The defendant was in the yard when they approached and he invited them into the house upon their stating to him that she was the girl who had called him from San Francisco. Truitt testified that he asked if Mrs. Frank would be able to...