People v. Barkoff

• Decision Date: 19 September 1958
• Docket Number: Cr. 3460
• Citation: 163 Cal.App.2d 639,329 P.2d 1005
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur BARKOFF, also known as A. Barkoff, Defendant and Appellant.

Page 1005

329 P.2d 1005

163 Cal.App.2d 639

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur BARKOFF, also known as A. Barkoff, Defendant and Appellant.

Cr. 3460.

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

Sept. 19, 1958.

Hearing Denied Nov. 12, 1958.

Carlson, Collins, Gordon & Bold, John Ormasa, Richmond, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

BRAY, Justice.

On this appeal by defendant from a judgment of conviction after jury verdict, on two counts of violating section 274, Penal Code (abortion) and from denial of his motion for new trial, defendant makes but two contentions: (1) failure of the court to give on its own motion an instruction similar to CALJIC No. 27; (2) alleged error in instructions on intent.

Record.

Defendant was charged by indictment with four counts of abortion, each on a different woman. The jury acquitted him on counts II and III. Briefly, the evidence is as follows: For 20 years defendant has been a licensed chiropractor practicing in Richmond. Count I. Evangeline testified that believing herself to be pregnant, and directed by a friend, she went to defendant's office, with Joel, a friend. There, defendant instructed her to take off her underpants. He then took her to his treatment room where he requested her to lie on a table. With a speculum he opened up her private parts and inserted a pessary. No mention of Evangeline's menstrual periods was made by either person. While inserting the pessary or immediately thereafter defendant told Evangeline that she could expect her menstrual period to start within one hour to several days; that she would have a heavy vaginal flow which would probably end with cramps and a miscarriage. She paid defendant $35, receiving no receipt. At midnight she began having vaginal flow of blood. Three days later she removed the pessary. The next day she became ill and went to a hospital where some 11 days later she had a miscarriage and expelled a fetus.

Count II. Marian determined that she was about three months pregnant. At defendant's office she told him that she 'feared being pregnant or becoming pregnant.' She did not remember the specific language she used. Defendant told her he could administer a pessary for prevention, although he did not ask about her menstrual periods or physically examine her. He took her to the treatment room where he inserted a pessary. She paid him $35, receiving no receipt. From that night (Saturday) until Wednesday there was a heavy vaginal flow. She then expelled both the pessary and an 11-inch fetus.

Count III. Lee Ila was told she was pregnant after having an appendectomy performed. Her sister took her to defendant. Defendant asked her how many months she had 'been gone.' Just before inserting a pessary defendant told her not to tell any one what he was doing because it would incriminate them both. After about seven days the pessary became dislodged. After about another seven days she returned to defendant, who took out the pessary, telling her to return in about a week. On returning he then inserted another pessary, saying 'This one will do the job.' A couple of weeks later she began to have a vaginal flow and cramps. She was taken to a hospital where she had a miscarriage. Lee Ila's sister paid defendant $35.

Count IV. Vernadine, discovering that she was 2 or 3 months pregnant, decided to terminate the pregnancy by getting a 'button' to cause a miscarriage. She went to defendant's office and asked him for a 'button.' When he asked her what she wanted it for, she told him that she might be pregnant as she had missed a couple of menstrual periods. Defendant quoted a price of $35 for a pessary. Not having the money with her she made an appointment for a later date. Returning a few days later, she told defendant that she wanted a pessary as she was pregnant. After she removed her clothing defendant put her on a guerney and inserted the pessary. Defendant told her the pessary should come down in several days, and if nothing happened to return, and that if it become necessary for her to go to the hospital she was to be sure to remove the pessary first. He then used a vibrator on her stomach to start the cramps. She paid defendant $35, asking defendant for a receipt. He refused to give one. Two days later she started to bleed. She entered a hospital where that night she had a miscarriage, expelling a fetus 7 or 8 inches long. It was later determined that the fetus was 4 1/2 or 5 months old. Prior to entering the hospital she had expelled the pessary.

The prosecution produced two other women, the first of whom testified that she had gone to defendant's office, told him she was pregnant and desired the insertion of a pessary. He complied. She returned several days later and he inserted a second pessary. In a few days she had a miscarriage and passed a fetus. The other woman told him that she had missed one of her periods and desired a pessary inserted. He did so. In a few days she passed a few small clots of blood. Each woman paid him $35.

Dr. George Loquvam, physician and pathologist and witness for the prosecution, testified that in his opinion a pessary was not an accepted medical device for contraceptive purposes but was an abortive, as it caused an inflammatory reaction, which will cause an abortion of the very early fetus. The insertion of a pessary into a woman pregnant from 1 to 4 months would cause an abortion. The medical reports on Evangeline, Vernadine and Lee Ila were consistent with the conclusion of criminal abortion. However, he additionally stated that pessaries had been sold as contraceptives and were known among medical men as such, but in his opinion no qualified medical person used them for any purpose as they did not prevent conception.

Defendant admitted inserting the pessaries in all four women. He claimed, however, that he did it for contraceptive purposes only and not to cause miscarriages. None of the women told him that she was pregnant nor did he know that she was. Evangeline told him that she wanted a pessary for birth control purposes so that she could finish school without becoming pregnant. Lee Ila's sister told him that Lee Ila was 'playing around' and wanted the pessary for birth control so that she could finish her school. Marian also said she wanted it for birth control and stated that her menses were regular. Vernadine, who was married, told him she wanted it for birth control, that she had two children and her menses were regular. Defendant testified that pessaries had been used by chiropractors and physicians for 25 years as contraceptive devices; that the Chiropractic Board inspectors knew that he was using them for that purpose and had never complained to him regarding their use; that as far as he knew there was no question of his right as a chiropractor to use pessaries as contraceptive devices. Moreover, he did not believe that a pessary could cause a miscarriage in a pregnant woman.

Dr. David Siegman, physician and pathologist and witness for the defense, testified that pessaries were known to the medical profession as a means of contraception but were not too strongly recommended although they were still being used by older physicians. In his opinion the insertion of a pessary into a pregnant woman would not always produce a miscarriage although there was a good chance of their doing so. From the medical records, he opined that Vernadine's miscarriage was spontaneous, the kind which is seen where there is an accidental abortion. Evangeline's miscarriage resulted from an infection which resulted more likely from another source than the pessary; and Lee Ila was no more than 1 1/2 months pregnant at the time of her miscarriage.

1. Instruction on Circumstantial Evidence.

Defendant contends the court of its own motion should have given CALJIC No. 27, or a similar instruction, to the effect that to find the defendant guilty on circumstantial evidence alone the proved circumstances must be irreconcilable with any other rational conclusion than that of guilt. The court, at defendant's request, gave CALJIC No. 26, to the effect that if the evidence is susceptible of two constructions it is the duty of the jury to adopt the one favorable to defendant's innocence; if one of the conclusions is reasonable and the other unreasonable, it is the jury's duty to adhere to the reasonable deduction, bearing in mind, however, that even if the reasonable deduction points to defendant's guilt, the entire proof must carry the convincing force required by law to support a verdice of guilt.

In this case, defendant having admitted the acts of inserting the pessaries, the main issue was the intent with which he did it--was it for purposes of abortion as claimed by the prosecution, or for contraceptive purposes, as claimed by defendant? (The court instructed that defendant was authorized to use a pessary 'for every lawful purpose upon the persons of the women named in the indictment.')

It seems well settled in this state that an instruction on the irreconcilability of circumstantial evidence must be given, whether requested or not, in any case where the conviction rests substantially on circumstantial evidence. People v. Bender, 1945, 27 Cal.2d 164, 163 P.2d 8 [conviction for murder]; People v. Yrigoyen, 1955, 45 Cal.2d 46, 286 P.2d 1 [conviction for issuing a check without sufficient funds and with intent to defraud]; People v. Koenig, 1946, 29 Cal.2d 87, 173 P.2d 1 [prosecution for robbery]; People v. Candiotto, 1954, 128 Cal.App.2d 347, 275 P.2d 500 [prosecution for possession of narcotics]; People v. Crisel, 1955, 137 Cal.App.2d 275, 290 P.2d 9 [conviction of second degree burglary]; People v. Neel, 1957, 151 Cal.App.2d 1, 310 P.2d 986 [conviction of grant theft of an automobile]. The instruction need not be given where the conviction is...