People v. Cummings, Cr. 5533

• Decision Date: 30 April 1956
• Docket Number: Cr. 5533
• Citation: 141 Cal.App.2d 193,296 P.2d 610
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur Lawrence CUMMINGS, Defendant and Appellant.

Page 610

296 P.2d 610

141 Cal.App.2d 193

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur Lawrence CUMMINGS, Defendant and Appellant.

Cr. 5533.

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

April 30, 1956.

Hearing Denied May 20, 1956.

A. Brigham Rose, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Justice.

A jury found defendant guilty of an attempt to commit an abortion. He appeals from the judgment ¹ and order denying his motion for a new trial.

For some years prior to December, 1954, defendant was a duly licensed physician and surgeon and maintained offices in Burbank, California. On December 13, 1954, C. A. Mead, an investigator for the State Board of Medical Examiners, and a Miss Robinson, who worked with him, called on defendant at his office. Miss Robinson advised the doctor that she thought she was pregnant, although she knew she was not. Defendant inquired why she did not get married. Mead stated that he was already married. Defendant examined Miss Robinson and told her she was definitely pregnant. Miss Robinson acted perturbed and Mead remarked that they were really in trouble. Defendant then said, 'Well, what you want is an abortion.' They said they did and inquired about the cost. Defendant told them it would be $500. Miss Robinson stated that the friend who had referred her had paid $150. Mead said that he could not raise $500. Defendant thereupon asked him whether he could raise $300. Mead said he could but it would take a few days. Defendant inquired whether he could raise it by Friday. Mead stated that he thought he could. Defendant then told them to get the money and return about 8:00 o'clock Friday night, and when they saw the lights go out, to enter. On the way out, Mead paid a $3 fee for the examination, receiving a receipt therefor from the woman in the outer office.

Mead and Miss Robinson returned to defendant's office at the appointed time the following Friday night; they could not see any lights on; a nurse in the office told them defendant was not there, and asked them to wait. They waited outside until defendant arrived. He took them into the surgery room, where he asked who had the money. Mead gave him $300 in bills which defendant put in his pocket. Defendant told Miss Robinson to take off her lower clothing and gave her a sheet. She removed her clothes and got onto a table, where she put her feet in stirrups. At the front of the table was a shelf containing a basin, towel, bowls, gauze pads, rubber gloves, and instruments. Defendant dipped a gauze pad into a green solution and rubbed Miss Robinson's private parts with it. He then dipped another pad into a pink liquid, told Miss Robinson that it would sting, and wiped her vagina with it. He inserted a vaginal speculum into her vaginal tract. Mead asked defendant, 'Are you going to use a tube on her, or what are you going to do.' Defendant replied, 'No, I'm going to scrape the uterus.' Mead then inquired, 'Will that cause her not to have a baby?' Defendant answered, 'Well, that's the idea of the thing, yes.'

Defendant picked up a curette and turned back toward Miss Robinson, remarking, 'We'll get started now, and get this through.' He started to bend forward, moving the curette toward Miss Robinson. When his hand was about to her knees, Mead arrested him. Either Miss Roginson or the nurse removed the speculum from Miss Robinson's person.

Miss Robinson retired to dress and to get Sergeant Vandegrift, who was outside of the office. Mead ordered defendant to take the money that he had given him out of his pocket and put it on the table. The doctor acknowledged he had accepted this money as payment for attempting to perform an abortion on Miss Robinson. Mead then went to the counter where the instruments were and picked up each one, asking the doctor, as he did so, whether that was an instrument he was going to use in an attempt to perform an abortion on Miss Robinson. Defendant answered these inquiries in the affirmative. Mead wrapped the instruments in a towel and took them with him. They were introduced in evidence at the trial.

Sergeant Vandegrift indicated an intention to arrest Miss Heslep, defendant's nurse. She, however, disclaimed any knowledge that the doctor was going to perform an abortion that night. Defendant corroborated her statement by saying, 'She didn't know what I was going to do tonight. I hadn't told her, and she doesn't know anything about it.'

Before leaving the office, defendant told the officers he had been performing abortions since 1942 and that he had performed half a dozen or more during the past six months.

At the Burbank police station, defendant stated it was his opinion that Miss Robinson was pregnant and that he intended to perform an abortion on her that evening. When asked whether he wanted to call his attorney he gave a negative answer, adding, 'I don't need one. I'm guilty.'

At the trial it was defendant's position that he thought Miss Robinson had an ectopic or tubular pregnancy and so advised her; he did not intend to perform an abortion on her that night; he was going to take a biopsy and have it analyzed by the laboratory; if it showed decidual cells it would mean she was definitely pregnant, and in that case, if it was an ectopic pregnancy, she was to be hospitalized.

In seeking a reversal defendant contends:

First, that he may not be found guilty of an attempt to commit an abortion since the victim was not pregnant and an abortion was therefore impossible of accomplishment. He argues that such a conviction is contrary to law because it would make a criminal offense out of the idea of committing that which it is impossible to consummate. There is no merit in this point. Penal Code section 274 provides: '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.' Prior to the amendment of this section in 1935, an essential element of the crime was that the woman on whom the abortion was performed was in fact pregnant. People v. DeVaughan, 105 Cal.App. 516, 518, 288 P. 113. Since the amendment, proof of pregnancy has not been required to establish guilt of abortion, and the performing of any of the enumerated acts, believing that she is pregnant and intending to produce a miscarriage, constitutes the offense although the woman is not in fact pregnant. People v. Raffington, 98 Cal.App.2d 455, 459-460, 220 P.2d 967; People v. Gallardo 41 Cal.2d 57, 68, 257 P.2d 29; People v. Green, 111 Cal.App.2d 794, 799, 245 P.2d 526. The elements of an attempt to commit an abortion are (1) a specific intent to commit the crime, and (2) a direct, unequivocal act done toward that end. People v. Gallardo, supra; People v. Bowlby, 135 Cal.App.2d 519, 529, 287 P.2d 547. Thus, the crime of attempted abortion is committed if one, believing that a woman is pregnant and intending to produce a miscarriage, does a direct, unequivocal act toward the consummation of a miscarriage. People v. Berger, 131 Cal.App.2d 127, 129, 280 P.2d 136; People v. Raffington, supra; People v. Bowlby, supra. This is in harmony with the general rule that where there is an apparent ability to commit the crime in the way attempted, the attempt is indictable although, unbeknown to the person making the attempt, the crime cannot be committed because of the non-existence of some extrinsic fact. People v. Siu, 126 Cal.App.2d 41, 44, 271 P.2d 575; People v. Lanzit, 70 Cal.App. 498, 508, 233 P. 816; 22 C.J.S., Criminal Law, § 77, p. 142.

Defendant relies on People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913. That case, however, does not support his thesis. It stands for the proposition that preparation to commit a crime is not enough, but that some appreciable fragment of the crime must have been committed.

Second, that the evidence is insufficient to sustain the conviction. Defendant argues that the evidence fails to show that he (1) intended to perform an abortion, or (2) did any direct, unequivocal act toward the commission of the offense.

In passing on the sufficiency of the evidence to sustain a conviction it must be borne in mind that before a reversal may be had on that ground, '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. [Citation.] We must assume in support of the judgment the existence of every fact which the trial court could have reasonably deduced from the evidence, and then determine whether the facts 'justify the inference of guilt.' [Citation.] If the circumstances reasonably justify the determination of the trier of fact, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant a reversal. [Citations.]' People v. Frankfort, 114 Cal.App.2d 680, 689, 251 P.2d 401, 407. Applying these principles to our factual situation, as herein recited, it is clear that the jury could reasonably infer that defendant believed Miss Robinson was pregnant, and that he intended to use the instruments and medicines at hand for the purpose of procuring a miscarriage. The jury could also reasonably conclude that defendant had completed his preparation and was in the process of performing direct, unequivocal acts which he thought would result in the miscarriage he intended to produce. Such implied factual findings on the part of the jury support the judgment of conviction. People v. Gallardo, supra, 41 Cal.2d at page 66, 257 P.2d 29; People v. Berger, supra; People v....