People v. Berger

• Decision Date: 28 February 1955
• Docket Number: Cr. 3028
• Citation: 131 Cal.App.2d 127,280 P.2d 136
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Adolphus A. BERGER, Defendant and Appellant.

Page 136

280 P.2d 136

131 Cal.App.2d 127

The PEOPLE of the State of California, Plaintiff and Respondent, v. Adolphus A. BERGER, Defendant and Appellant.

Cr. 3028.

District Court of Appeal, First District, Division 2, California.

Feb. 28, 1955.

Hearing Denied March 30, 1955.

Leslie C. Gillen, San Francisco, William F. Cleary, San Francisco, of counsel, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Defendant appeals from a judgment convicting him of an attempt to commit an abortion and from the order of the trial court denying his motion for a new trial. Appellant was indicted jointly with Inez L. Burns. The indictment contained several counts but it was agreed that the prosecution would proceed on count 2 charging an attempt to commit abortion, appellant and his counsel waived a jury trial and stipulated to submit the charge to the trial judge on the testimony given before the grand jury.

The evidence may be summarized as follows: Adrienne Scheuplein, an investigator for the district attorney, went to the office of appellant, a licensed physician. She introduced herself as Kathryn Phillips and told appellant that she was pregnant and that she had come to him for the same reason as the young woman who had referred her to him. He directed her to go to a laboratory for a test to establish pregnancy. She was later informed by telephone that the test was positive and requested to call again at appellant's office. When she went to his office the second time the co-defendant Burns was there. Appellant told Mrs. Scheuplein that it was difficult to do anything about her problem and asked if the operation could be performed at the place where she was staying. It was subsequently arranged that the operation should be performed at Mrs. Scheuplein's home. Appellant told Mrs. Scheuplein that a suitcase would be delivered at her home and that the person who would perform the operation would get in touch with her and he gave her specific instructions on preparing herself for surgery. The suitcase was delivered that night and the following morning Inez Burns arrived.

Mrs. Burns went to the kitchen and began making arrangements for the operation. The suitcase containing the surgical instruments was brought into the kitchen, the instruments were wrapped in towels and placed on the stove in pans of water to boil. A sheet was placed over the window to conceal it from the view of any person outside. Mrs. Burns placed cotton, jars of pitocin, ergotrate, metsol and ammonia and a large roll of gauze on a side table. Mrs. Scheuplein paid Mrs. Burns $525 in marked money. These activities occupied about 45 minutes during which Mrs. Burns talked of her past activities and reassured Mrs. Scheuplein about the pending operation. When the water in the pans containing the instruments was starting to boil Mrs. Scheuplein went upstairs, supposedly to disrobe, and the police arrived and arrested Mrs. Burns. Mrs. Burns admitted that she was there for the purpose of performing an abortion. Other details of evidence connecting appellant with these activities need not be stated since no claim is made that if Mrs. Burns was guilty of the crime charged the appellant could not under the evidence be found guilty also.

Appellant makes two arguments on appeal: 1, that under our statutory law there can be no such crime as an attempt to commit abortion; 2, that the evidence in any event is not sufficient to support the conviction.

Penal Code, § 274 defines the crime of abortion as follows: 'Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than five years.'

It is appellant's position that this section itself makes an attempt to procure a miscarriage the substantive offense and hence Pen.Code § 664, which only applies 'where no provision is made by law for the punishment of such attempts', is not applicable. Tersely appellant argues that there can be no such crime as an attempt to attempt. The argument is one of semantics rather than logic. The legislature could have made the actual inducement of a miscarriage the substantive offense in which event the acts prohibited by Pen.Code § 274 would have constituted an attempt (in which case other preceding acts might also be sufficient to constitute an attempt). But the legislature has chosen to make those acts performed with intent to procure a miscarriage the substantive offense and no logical reason appears why the attempt to commit that substantive offense does not fall within the definition of Pen.Code § 664. To apply the sections to this particular case: 'Every person * * * who uses or employs any instrument * * * with intent thereby to procure' a miscarriage is guilty of the substantive offense. No good reason appears why any person who attempts 'to use or employ any instrument' with the same intent is not guilty of an attempt under Pen.Code, § 664. While this question has apparently not been suggested before it is significant that the courts have held that a person may be guilty of an attempt to commit an abortion as that crime is defined in Pen.Code, § 274. People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29; People v. Raffington, 98 Cal.App.2d 455, 220 P.2d 967; People v. Reed, 128 Cal.App.2d 499, 275 P.2d 633.

Appellant points out that the black letter heading of section 275 Pen.Code which prohibits similar acts by a pregnant woman herself reads: 'Submitting to an attempt to produce miscarriage.' The offense is not the same, but even if it were, while the black letter headings of sections of the code may be looked to in case of ambiguity they are not conclusive. Ex parte Koser, 60 Cal. 177, 192; Aebli v. Board of Education, 62 Cal.App.2d 706, 738, 145 P.2d 601. We are satisfied that where, as here, the legislature makes certain acts a complete substantive offense the attempt to commit those acts falls under Pen.Code, § 664.

The more serious question is whether the acts performed by Mrs. Burns amounted to no more than mere preparation. The cases make clear that mere preparation to commit a crime does not constitute an attempt to commit it, but the drawing of the line between mere preparation and attempt in close cases is not an easy task. It may be drawn from the cases that where the intent to commit the substantive offense is as clearly...