People v. Ballard
| Citation | 218 Cal.App.2d 295,32 Cal.Rptr. 233 |
| Decision Date | 15 July 1963 |
| Docket Number | Cr. 8388 |
| Court | California Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Edgar BALLARD, Defendant and Appellant. |
Jerome Weber, Beverly Hills, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Herbert Davis, Deputy Atty. Gen., for respondent.
This is an appeal from a judgment of conviction on two counts of illegal abortion.
In an indictment returned by the grand jury of Los Angeles County on April 11, 1961, the appellant was charged with the crime of violation of section 274, Penal Code, in seven counts.
Count I charged in effect that defendant did on February 11, 1961, 'provide, supply, use and employ an instrument and other means upon the person of Marie Owen * * * with * * * the intent * * * to procure the miscarriage of said Marie Owen, said use and employment of said instrument and other means to procure said miscarriage of said victim, not then and there being necessary to preserve the life of * * * Marie Owen.'
Count II charged in the language above stated that the defendant did on February 4, 1961, perform an abortion upon Dorothy M. Franzen.
It is unnecessary to set forth the charges contained in the remaining counts for the defendant was found not guilty thereof--there being no evidence that any crime had been committed as so charged in said counts.
The defendant pleaded not guilty and the trial was set for November 15, 1961, and later continued to December 11, 1961, and after subsequent continuances (due to congestion of the calendar) the trial commenced on January 12, 1962, before a jury. Marie Owen Fitch testified for the prosecution on January 12, 1962. On January 16, 1962, Dorothy Franzen testified for the prosecution and Marie Owen Fitch was recalled and testified further on direct examination.
A motion for a mistrial made by the defendant was granted. On February 20, 1962, the cause proceeded to trial again, this time without a jury. Marie Owen Fitch and Dorothy Franzen each testified over objection as is more particularly hereinafter set forth. The defendant was found guilty as to Counts I and II and not guilty as to Counts III, IV, V, VI and VII. A motion for a new trial was made and denied. Notice of appeal was duly filed.
At the start of the trial the judge took judicial notice of the case of People v. Ballard, 167 Cal.App.2d 803, 335 P.2d 204, and the prosecution read into the record excerpts from that opinion with reference to the background and qualifications of the defendant. 1
Marie Owen Fitch was called as the first witness. She testified that sometime before February 11, 1961 (she did not recollect exactly when it was, although she apparently believed it was in the early part of February), she believed herself to be pregnant. She stated that she was then in good health and desired to terminate the pregnancy. She lived in an abode with her two children, apparently by a previous marriage. Her testimony was that she did not go to any doctor or clinic immediately after she believed herself to be pregnant. She saw the defendant at his office, without a previous appointment having been made, sometime during the week preceding February 11, 1961. Roger and Dorothy Franzen went with her to the doctor's office. She explained to the doctor that she 'had taken some pills, turpentine pills' and she was feeling 'rather ill' and she asked the doctor if he could help her and he said 'yes.' Her symptoms were that of bleeding, being 'very nauseous' and having 'horrible headaches' all of the time. She also told the doctor that she had been taking nine to twelve turpentine pills a day although the box which contained the pills had written thereon 'Three a day.' That after she had taken the turpentine pills she started to pass blood and tissue. She further told the doctor that she was passing tissue and he stated that the chances were that the foetus would never grow any further and that a miscarriage had already started, and further that if the condition was not taken care of right away an infection would set in and she needed treatment and without such treatment that she might very well die. The witness stated at the trial that she also felt at the time of her visit to the doctor that she might well die if she was not cared for at a very early date. The doctor indicated to her that the purpentine pills were very dangerous and that she should never have taken them. She also indicated to the doctor that she wanted him to do whatever 'his practice would dictate' under the circumstances. She did not recollect that he used any such words as 'scrape' or 'curettement.' No physical examination was made of the witness at the doctor's office. After the discussion with the doctor at his office an arrangement was made to meet the doctor on the following Saturday at Mr. Fitch's apartment in North Hollywood. The reason for choosing the apartment was that she had her two children with her at her house and that she could not go to a hospital because she did not 'want any embarrassment'--the possible embarrassment apparently arising from the fact that she was an unmarried person, had engaged in sexual intercourse, had become pregnant and had suffered a miscarriage. Since the episode in question she married Mr. Fitch and has given birth to a child by him. The apartment of Fitch was difficult to locate and an arrangement was made for the doctor to be picked up by Fitch and taken to his abode on Saturday, February 11, 1961. Fitch picked up the witness at her house and took her to his apartment. Later the same day Roger and Dorothy Franzen arrived at the Fitch apartment. Fitch and Mr. Franzen left the Fitch apartment and picked up the doctor and the three of them returned to the apartment. The doctor gave the witness 'a shot.' Fitch and Mr. Franzen left the apartment. Mrs. Franzen stayed with the witness and the doctor. The apartment was fairly small, with a separate bathroom, living room and open bar kitchen. The doctor examined the witness upon a couch which had been prepared for such examination. She stated that she felt something inside of her but she could not describe what it was other than to say that there was considerable pain. She saw no instrument and could not state that she felt any instrument inside of her. She was then asked 'What did you feel when something went inside of you besides pain?' and she answered, 'Well, that is all.' Upon her so testifying the prosecution, without any foundation or showing of surprise or other statement to the court, then directed the attention of the witness to a page and line of what purported to be the record of her testimony before the grand jury. The deputy district attorney then said:
'Did you say this before the Grand Jury?
"Well, I just felt some--an instrument go in me and some scraping.'
'Did you say that before the Grand Jury?'
The witness related that if such were 'down' she must have said it but that she did not 'remember what I said at the Grand Jury.' She then said that she testified truthfully before the grand jury as she then remembered the facts. The witness was given no opportunity to refresh her recollection and to testify from her own recollection. There was an objection to the evidence upon the grounds that the prosecutor was attempting to impeach his own witness. The court upon request of the prosecutor took judicial notice of the fact that the witness has so answered the questions before the grand jury and permitted the introduction of such evidence as past recollection recorded under the provisions of section 2047, Code of Civil Procedure. She further stated that she did not know whether 'anything was removed from inside' of her.
Before Fitch left the apartment earlier the witness saw some money change hands from Fitch to the doctor. She indicated that an amount of $500 was discussed with the doctor but she could not recollect just where such discussion took place. The prosecutor without any foundation or any other statement then said:
'Q Well, I direct your attention to your testimony before the Grand Jury, page 12, line 19. Were you asked this question, and did you give this answer?
'Where you asked that question before the Grand Jury, and did you give that answer?'
She answered that she supposed she did so answer 'if it is down there'--that she was telling the truth as she remembered it when testifying before the grand jury--but that the transcript reference of the grand jury proceedings did not refresh her recollection in any respect. Apparently the evidence was received as 'past recollection recorded.' Fitch paid to the doctor the sum of $500. Shortly before the doctor left the apartment he gave the witness some pills to take.
On February 13, 1961, the witness had a discussion with members of the police department with reference to what had been done. When asked on the witness stand what she had told the police she answered, 'They told me,' and she further stated that she did not agree with the police in what they apparently stated had taken place. The witness learned after the conversation with the police that the doctor had been arrested.
The witness explained that her testimony to the effect that she was in good health referred to a time prior to the occasion of her consuming the turpentine pills--that she was not in good health after she took the pills--that after taking the pills and after the bleeding and passing of the tissue started she had intense headaches, that she was virtually going out of her mind. She advised the doctor of these and other facts as heretofore set forth and he told her that she had partially aborted herself. She also stated that it was her opinion that she had aborted herself prior to seeing or...
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