People v. Crain
| Citation | 102 Cal.App.2d 566,228 P.2d 307 |
| Decision Date | 01 March 1951 |
| Docket Number | Cr. 2677 |
| Parties | PEOPLE v. CRAIN. |
| Court | California Court of Appeals |
Alfred J. Hennessy, San Francisco, for appellant.
Fred N. Howser, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
Defendant Crain appeals from the judgment rendered upon a verdict of conviction (1) of an attempt to commit abortion, a violation of sections 664 and 274 of the Penal Code, and (2) of conspiracy to commit abortion, a violation of sections 182 and 274 of that code. He also appeals from the order denying his motion for new trial. Defendant Farrell, tried and convicted of the same offenses with Crain, did not appeal.
Appellant predicates his plea for reversal of the judgment as to each count upon asserted insufficiency of the evidence to support the verdict and upon asserted prejudicial errors of law occurring at the trial.
The first count charged that on or about October 27, 1949, the defendants did willfully, unlawfully and feloniously 'attempt to provide, supply, use and employ an instrument and other means upon the person of Dorothy Arriola, a woman, with the willful, unlawful and felonious intent then and there and thereby to procure the miscarriage of the said Dorothy Arriola,' said use and employment not being necessary to preserve her life.
This is a charge that defendants violated certain of the provisions of sections 274 and 664 of the Penal Code. Section 274 declares that '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.' Section 664 declares that 'Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: * * *.'
The gist of this charge, therefore, it that defendants attempted to 'use and employ an instrument and other means,' with the 'intent thereby to procure the miscarriage of' the woman mentioned. It is not necessary to charge or prove that the woman was pregnant. That requirement was amended out of section 274 in 1935.
As to the evidence, appellant claims it is insufficient to prove that appellant attempted to use or employ an instrument or other means 'with intent thereby to procure the miscarriage of such woman'. He predicates this claim upon the asserted lack of evidence corroborating the testimony of that woman. In this he invokes section 1108 of the Penal Code, which states that 'Upon a trial for procuring or attempting to procure an abortion * * * the defendant cannot be convicted upon the testimony of the woman upon * * * whom the offense was committed, unless she is corroborated by other evidence.'
Appellant is correct in representing that in this particular case the sufficiency of evidence of the requisite intent does depend upon the sufficiency of such corroboration. The evidence concerning that intent came in directly and principally through the testimony of the prosecutrix, Arriola, and the appellant.
A good deal of Arriola's testimony went in under restrictions which rendered that portion of her testimony inapplicable to the appellant. That portion consisted of conversations she had with defendant Farrell outside the presence of appellant, and went in subject to the limitation that it was hearsay as to appellant and not binding upon him. And when Officer Nelder started to testify concerning a conversation he had with Farrell outside the presence of appellant, the court, at the request of appellant, advised the jury, in these words:
It appears that on the 27th of October, 1949, Arriola, a policewoman, went to the drugstore where Farrell, a pharmacist, was employed, and engaged in a conversation with him about 4 p. m. of that day. Between 6 p. m. and about 9 p. m. of that day she had four telephonic conversations with him, and took a room at a certain hotel.
Testimony of Farrell. Farrell testified that about 5 p. m. of that day he dropped in and saw Crain, who lived in the same building as did Farrell, and asked Crain if he could examine a patient that evening. Crain said that he was moving but thought he could do so. Crain asked about the patient. Farrell told him the patient was a woman and she seemed--she didn't know herself what the trouble was--that she was suffering from suppressed menstruation. He later went to see Crain about 9 o'clock that evening and told Crain that the woman had telephoned Farrell and told him she was at the hotel. He gave Crain a slip of paper with the name 'Dorothy Ormond' on it.
Testimony of Crain. Crain was a graduate of the College of Osteopathic Physicians and Surgeons and held a Physician and Surgeon certificate issued to him by the State Board of Osteopathic Examiners authorizing him to use any and all methods in the treatment of diseases, injuries, deformities or other physical or mental conditions of human beings. Crain was a general practitioner; he had been a specialist in proctology. Crain testified that he was acquainted with Farrell, that their apartments were in the same building; that on October 27 he had a conversation with Farrell, who told him a woman had come in to see him and she wanted to see a doctor and had asked if he could see her that evening. Crain said that he was going across the bay and would be back sometime in the evening. Crain asked what kind of a case it was and Farrell replied it was a woman. Crain did not ask anything further as to what her ailments were. Farrell told him it was a pelvic case, some mixed up menstruation, that she was nervous and sick, and Farrell asked if Crain could examine her. When Crain returned to San Francisco Farrell told him where to go. He went to the 16th Street Hotel that evening and arrived a few minutes before 10 o'clock. When he arrived at the hotel he knocked on the door of the room and a woman asked, 'Who is it?' He replied, 'Dr. Crain.' She opened the door very suddenly and he went in. He asked if she were Mrs. Ormond and she replied that she was. He told her that someone told him she wanted to see him. She replied that she had been waiting. He asked her troubles and she replied that she did not feel well and had not menstruated. He asked if she could be pregnant. She said she thought that was her trouble. He replied that he hadn't much time, but could find out in two or three minutes if she were pregnant. To determine her pregnancy he was going to make a bi-manual examination. When in Woodacre he had taken out his gynecological instruments from a footlocker in which they were stored. He described to the jury the examination for pregnancy and explained the use of those instruments. He testified that the catheter was used as a test for pregnancy because it is almost impossible to insert a soft catheter into a nonpregnant uterus; if the woman is pregnant the catheter will enter easily. The instruments he had with him were the usual instruments carried by a doctor who was to examine a woman for menstrual trouble. He said he had no discussion with Arriola regarding a fee. Arriola was curious about the instruments. She asked what a curette was. He pulled one out and showed it to her. He prepared to make the examination, taking instruments out of his brief case and arranging them and putting a spread upon the bed, and asked her if she was ready for the examination. She replied that she had to go to the toilet. She left the room and was gone less than a minute when she returned. She had her purse under her arm and handed him some money. He was astonished because he had not asked for any money. He did not expect a fee, he thought he was doing a favor. At this time a sharp rap came on the door. Arriola opened the door ond Officers Nelder and Vandervort came in. Crain said he could not hand the money back to Arriola because she had moved. He could either have dropped it on the floor or put it in his pocket. He put it in his pocket. He was in the room probably a little more than 10 minutes before the officers came in.
Testimony of Arriola. Arriola, a resident of San Francisco, testified that she was in the hotel room, waiting for a doctor to call. A knock came on the door. She asked, 'Who is it?' A voice said, 'It's your friend.' She opened the door and Crain was there. He was holding a brief case and a large brown paper bag. The bag had a long white pan inside of it. Crain said he had had a fall in the country and had been knocked unconscious. He had gotten the call from Farrell after regaining consciousness. He said that the fall had made him very forgetful; that he had left his bag in another hotel on the third or first floor, he could not remember which. Arriola said she hoped he would not forget where he left her, and asked if he was going to come back and care for her. He said it probably would not be necessary, but if it should be, she could call Farrell and he would come over again. He said he was going to see a doctor about the fall. She asked him about the room, if it was adequate. He said it was not very good, the walls were thin and she could not scream all she wanted to. Crain took the pan out of the bag and put it on the table. Then he opened the brief case and took certain surgical instruments out, a vaginal speculum, and a tenaculum, and he took out a rubber tube which he called a catheter,...
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