People v. Bowlby

• Decision Date: 21 September 1955
• Docket Number: Cr. 5350
• Citation: 53 A.L.R.2d 1147,287 P.2d 547,135 Cal.App.2d 519
• Court: California Court of Appeals Court of Appeals
• Parties: , 53 A.L.R.2d 1147 The PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil BOWLBY, Defendant and Appellant.

Page 547

287 P.2d 547

135 Cal.App.2d 519, 53 A.L.R.2d 1147

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil BOWLBY, Defendant and Appellant.

Cr. 5350.

District Court of Appeal, Second District, Division 3, California.

Sept. 21, 1955.

William V. Krowl, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., James D. Loebl, Deputy Atty. Gen., for respondent.

ASHBURN, Justice pro tem.

Defendant was tried and convicted upon an information charging in Count I the crime of abortion, Penal Code, § 274, and in Count II attempted abortion, Penal Code, §§ 274 and 664. Trial was had without a jury pursuant to specific waiver. Motion for new trial and application for probation were duly made and both were denied. Defendant was sentenced to state prison for the term prescribed by law for the crime of abortion (two to five years) and one year in the county jail for attempted abortion, this latter sentence to run concurrently with the state prison sentence, Defendant appeals from the judgment and the order denying a new trial. The principal contention with respect to each count is that the corroboration of the testimony of the woman upon whom the abortion was alleged to have been committed or attempted is legally insufficient and hence the evidence will not sustain a conviction.

Although the aborted woman is not an accomplice (1 Cal.Jur.2d § 5, p. 154), section 1108, Penal Code, says: 'Upon a trial for procuring or attempting to procure an abortion * * * the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence.' Speaking of corroboration of an accomplice (essentially the same question as here) the court said in People v. Griffin, 98 Cal.App.2d 1, 27, 28, 219 P.2d 519, 535: 'The word 'corroboration' in its etymological sense denotes 'a strengthening or confirming.' (Webster's New International Dictionary, Second Edition.) It is essentially a relative term and refers to some antecedent which it is said to strengthen or fortify. The jury in determining the question of corroboration must obviously compare the residue of the other evidence with the accomplice's testimony, in order to ascertain the truthfulness of the latter, and in this regard the corroborative evidence must do more than merely raise a suspicion of guilt, even a grave suspicion, in the jury's mind. It must reasonably satisfy the jury that the accomplice is telling the truth.' The quantity and quality of the necessary corroboration in a case of this kind is defined in People v. Gallardo, 41 Cal.2d 57, 62, 63, testimony, in order to ascertain if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the woman is telling the truth. [Citing cases.] It has been held that the corroborative evidence need not by itself establish that the crime was committed or show all the elements thereof, but it must relate to some act or fact which is an element of the offense. [Citing cases.] It must create more than a suspicion, but it may be sufficient even though slight and entitled to but little consideration when standing by itself. [Citing cases.]' To same effect are People v. Malone, 82 Cal.App.2d 54, 60-61, 185 P.2d 870; People v. Griffin, 98 Cal.App.2d 1, 25-28, 219 P.2d 519; People v. Allen, 104 Cal.App.2d 402, 411-413, 231 P.2d 896; People v. Morris, 110 Cal.App.2d 469, 476, 243 P.2d 66; People v. Kendall, 111 Cal.App.2d 204, 210, 244 P.2d 418; People v. Califro, 120 Cal.App.2d 504, 513-514, 261 P.2d 332.

As this question of sufficiency of corroboration goes essentially to that of sufficiency of the evidence to sustain the conviction a review of the evidence herein must be governed by familiar rules. 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt. * * * 'The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.'' People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911, 916. See also People v. Gutierrez, 35 Cal.2d 721, 727, 221 P.2d 22; People v. Hatton, 114 Cal.App.2d 195, 196, 249 P.2d 901. We therefore adopt in our statement of facts that evidence which tends to support the judgment rather than any conflicting testimony which was designed to prevent such a result.

Defendant is a licensed chiropractor, conducting an office and a small hospital in Los Angeles. Betty C. Burton, at the time here pertinent, was a married woman separated from her husband and working at a job which attached her to the U. S. Naval Hospital at Vallejo, California. Having been advised by a physician, after a pregnancy test had been made, that she was pregnant, she and her friend, Robert Foster, a student, traveled in her car from Valejo to Los Angeles to see defendant Bowlby. On April 5, 1954, Foster drove her to defendant's office and waited in the car while she went inside and conversed with Dr. Bowlby. Having made an appointment to return next day she returned to the car and Foster, and they drove away. Foster corroborates this, except as to what occurred inside defendant's office. Mrs. Burton testified that on that occasion she told defendant that she was in the family way, was unable to have a child at that time, and asked whether he could assist her; that he said he could; when asked how he would perform the abortion, he said he used a jelly which he inserted into the uterus, that it caused a pressure which in turn would produce an abortion. Asked the cost, defendant said it would be $300 in cash; she said she would bring it the next morning and an appointment was made for 9:00 a.m. on the 6th of April. Defendant himself testified that he told her to bring the $300. Foster testified that he brought Betty to the office to keep that appointment on the 6th, but he did not leave the car; she went inside. In effect she said the same thing.

According to her testimony she gave the doctor $300 in currency, was then taken by him into a small room, told to undress, wrap herself in a sheet and wait until the arrival of his nurse. This she did. At about 10:00 a. m. the nurse took her to another room where she was placed on a table with her feet in stirrups, and defendant worked on her for about a half hour. He was seated in front of her. She saw on an instrument table a syringe and a cannula, a tube similar to an exhibit shown her (marked 'lubricating jelly') which had the same odor as a bottle shown her bearing the label 'Dr. Bowlby's Seaweed Oil Antiseptic'; also two uterine forceps. Defendant inserted a vaginal speculum in her; she felt jelly go into her uterus, followed by the placing of a tampon; immediately she felt internal pressure. Defendant told her it would be about 24 hours before she would expel the fetus. She then returned to another room and stayed there overnight. The nurse did not testify and defendant's version was that of necessary evacuation of the uterus in order to save the patient's life, an explanation which the trial judge did not find credible. Of course there could be no direct corroboration of Betty Burton's account of the abortion procedure, but there is indirect corroboration, some of which came from defendant. As will later appear this is the same procedure that was described by defendant to Billie Greene, the complaining witness on Count II. It appears that the instruments and appliances which Burton saw on that occasion have legitimate uses in the hands of a physician other than abortion, but their assemblage within easy reach of a doctor who is attending a woman whose health is good except as affected by existing pregnancy, ¹ becomes evidentiary of an unlawful purpose. See People v. Vosburg, 123 Cal.App.2d 535, 536, 266 P.2d 927; People v. Raffington, 98 Cal.App.2d 455, 461, 220 P.2d 967; People v. Morris, 110 Cal.App.2d 469, 477, 243 P.2d 66; People v. Powell, 34 Cal.2d 196, 201, 208 P.2d 974; 1 Cal.Jur.2d § 26, p. 173.

After considerable questioning of defendant by the police, Investigator Ross said to him:

"Dr. Bowlby, you are charged with the actual abortion upon the person of Betty Burton, that you used these in-these instruments in terminating her pregnancy; that you packed her with an ointment jelly under pressure; that she paid you three hundred dollars for the abortion, and that you took the money.

"Also, you attempted an abortion on the person of Billie Greene and you were paid three hundred dollars to do that. The money was found in your possession. Now, Doctor, what do you have to say about this?"

Defendant remained silent. His reaction to such accusatory statements was corroborative of the abortee's testimony. People v. Davis, 43 Cal.2d 661, 670, 276 P.2d 801; People v. Simmons, 28 Cal.2d 699, 712-715,...