People v. Buffum

• Decision Date: 28 November 1951
• Docket Number: Cr. 4619
• Citation: 238 P.2d 47
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BUFFUM et al.

Page 47

238 P.2d 47

PEOPLE v. BUFFUM et al.

Cr. 4619.

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

Nov. 28, 1951.

Rehearing Denied Dec. 13, 1951.

Hearing Granted Dec. 28, 1951.

Joseph A. Ball, Long Beach, for appellant Roy L. Buffum.

Leonard Wilson, Los Angeles, for appellant Reginald L. Rankin.

Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Roy L. Buffum, a physician and surgeon, and Reginald L. Rankin, a layman, were indicted for violation of section 182 of the Penal Code, in that they conspired to use certain means to bring about miscarriages which would be in violation of section 274 of the Penal Code. Section 182 makes it a felony for two or more persons to conspire to commit any crime which is a felony. Section 274 defines the crime of abortion and makes the offense a felony. Section 275, in brief, makes it a felony for a woman to solicit and take any substance or submit to the use of any means with intent thereby to produce a miscarriage. Overt acts of Buffum listed in the indictment consisted of conversations which he had with each of the four women, his giving one of the women a slip of paper (which contained Rankin's telephone number); and with respect to defendant Rankin, his meeting with the four women at an appointed time and place and transporting them by automobile to a place in Mexico. It will appear in the recital of the evidence that there was testimony as to these and other overt acts. Each defendant appeals from the judgment against him and from the order denying his motion for a new trial.

A statement of the evidence sufficient for our purpose may be made without a detailed recitation of the testimony. Each of four women appeared at the office of Dr. Buffum, stated to him that she was pregnant and asked him to relieve her of that condition. In each case the doctor declined to do anything himself. He told one woman he would see what he could do for her and if he could do anything she would receive a telephone call. To another woman who was accompanied by her mother he said: 'A man will call you tomorrow,' and that the cost would be $200. When woman number three explained her condition, the doctor said: 'I never touch anything like that,' and endeavored to persuade her to have her baby. He wrote down the telephone number which she gave him. She left his office, and did not see him thereafter. The fourth woman, divorced and unmarried, was advised: 'Either to get married or find a good doctor.' He gave her a telephone number which she wrote down. Shortly after these occurrences three of the women received telephone calls from Rankin. The fourth woman called a number Dr. Buffum had given her and talked with Rankin. Each woman explained her condition and her desire to be relieved of it. Rankin quoted the cost of an operation at $250 in some cases, and $500 in one case. Arrangements were made with Rankin by telephone for the women to meet him at a designated point in Long Beach. The appointments were kept, Rankin drove them to Tijuana where abortions were performed by a Dr. Estrada. Rankin then returned the women to their homes in California. The evidence with respect to the matters just related consisted of the testimony of the four women, and in one case the testimony of the mother of one of them. There was no direct evidence of any communication between Buffum and Rankin, although there was a strong inference that they were acting in concert. Defendants did not take the stand. Testimony was given by police officers that Buffum at the time of his arrest and afterwards made statements that he knew Rankin, knew that he was taking the women somewhere and that he had had previous dealings with him in such matters. This testimony was contradicted in material respects by a witness who heard the conversations. There was also evidence that Buffum had reimbursed the parents of one of the women for the cost of her hospitalization. So far as concerns the matter of evidence corroborative of the testimony of the women, it may be said that while we assume for present purposes that it was legally sufficient it was by no means of such weight as to force the jury to accept it as sufficient.

We shall consider first what we deem to be the most important and a decisive claim of error. It is the contention of defendants that the four women were accomplices in the offense of conspiracy to violate section 274, and that the jury should have been so instructed. They requested instructions so stating, and appropriate instructions as to the necessity for corroboration. These instructions were refused and none of like import were given. The court did not instruct with respect to the principles of corroboration, nor was the jury instructed as to the definition of accomplices. Pen.Code, sec. 1111. The court also refused an instruction that if the women aided and abetted in the offense charged, they would be principals in the commission of that offense. We are of the opinion that the women witnesses were accomplices and that the requested instructions should have been given. A contrary conclusion was reached by the court in People v. Stone, 89 Cal.App.2d 853, 202 P.2d 333. One of the defendants in that case, H. V. Stone, had been convicted only of the offense of conspiracy to commit abortion, although other defendants were convicted of committing abortions as well. Stone requested and the court refused an instruction that the women witnesses upon whom abortions were alleged to have been committed were accessories to the conspiracy and that the defendants might not be convicted of that crime unless the evidence of such witnesses was corroborated by other competent evidence. It was held that refusal of the instruction was not error. The court said in 89 Cal.App.2d at page 869, 202 P.2d at page 343: 'Our courts have recently held definitely that a woman who voluntarily submits to an abortion is not, as a matter of law, an accessory to the crime of abortion charged under Section 274 against another person. People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; People v. Clapp [24 Cal.2d 935 839, 151 P.2d 237]; People v. Malone, 82 Cal.App.2d 54, 68, 185 P.2d 870; People v. Alvarez, 73 Cal.App.2d 528, 531, 166 P.2d 896; People v. Wilson, 54 Cal.App.2d 434, 446, 129 P.2d 149. * * * Upon the reasoning of the last cited authorities which hold that a woman who submits to an abortion is not an accessory to the crime of abortion prohibited by Section 274, it necessarily follows that, under the undisputed evidence of this case, that woman could not be an accessory to the crime of conspiracy charged against the defendants in the first count of the indictment. * * * If, upon a charge of abortion committed contrary to Section 274, the woman who submits thereto is not an accessory, certainly she would not be an accessory to an alleged conspiracy with other named defendants to commit that same abortion. The crime of abortion and that of conspiring to commit an abortion are separate and distinct offenses as provided by the California statutes.' (Emphasis added.) We are of the opinion that the conclusion reached in the Stone case did not necessarily, or at all, follow from the holdings in the cited cases. Believing the court to have fallen into error, we cannot do otherwise than state our disagreement. With due respect for the court we are firmly of the opinion that its conclusion has no support in the cited cases, and that it is contrary to important and well settled legal principles. Essentially the holding in the Clapp case, 24 Cal.2d 835, 151 P.2d 237 was that in taking the conduct of a woman who participates in acts, through the use of substances or submission to an operation, with the intention of producing a miscarriage, and making of her acts a separate offense applicable to her, which is described and defined in section 275, it was the legislative intent to exclude her from guilt of violation of section 274. The woman was held not to be an accomplice under section 1111, ¹ inasmuch as she would not be liable to prosecution under section 274. In the Stone case the only reason given by the court for its conclusion was that since a woman cannot be prosecuted for a violation of section 274, her conspiring with others to bring about a violation of the section would not be a criminal offense. The decision necessarily rests upon the proposition that one who is not liable to prosecution for the commission of an offense cannot be guilty of the crime of conspiracy to commit that offense. This proposition was accepted without citation of authority or discussion as to whether such is the law. The Stone case was followed in People v. Miner, 96 Cal.App.2d 43, 214 P.2d 557 without discussion of the point. It appears from the briefs that the cases which establish a contrary rule were not cited to the court.

The prevailing rule, both state and federal, is that one need not be liable to prosecution for a given crime in order to be guilty of conspiracy to commit it.

The decisions are numerous and uniform. The leading federal cases are Williamson v. U. S., 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278, conspiracy to suborn perjury and U. S. v. Holte, 236 U. S. 140, 35 S.Ct. 271, 59 L.Ed. 504, conspiracy to violate the Mann Act, 18 U.S.C.A. § 2421 et seq. They have been cited and applied in cases of conspiracies with bankrupts U. S. v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 59 L.Ed. 1211; Shaffman v. U. S., 3 Cir., 289 F. 370; Tapack v. U. S., 3 Cir., 220 F. 445; Cohen v. U. S., 2 Cir., 157 F. 651; U. S. v. Rhodes, D.C., 212 F. 513, and in other conspiracy cases, U. S. v. Stevens, D.C., 44 F. 132, conspiracy to violate the census laws; Chadwick v. U. S., 6 Cir., 141 F. 225, conspiracy with a bank officer to fraudulently certify a check; Farnsworth v. Zerbst, 5 Cir., 98 F.2d 541, conspiracy with one having diplomatic immunity to violate the Federal...