People v. Davis
| Decision Date | 30 November 1954 |
| Docket Number | Cr. 5618 |
| Citation | 276 P.2d 801,43 Cal.2d 661 |
| Court | California Supreme Court |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. George R. DAVIS, Defendant and Appellant. |
John H. Marshall and Richard E. Erwin, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.
Defendant, an osteopath, was charged with four counts and found guilty on two counts of having committed abortions. Pen.Code, § 274. He appeals from the judgment of conviction and the order denying his motion for a new trial. He contends that the judgment should be reversed because: (1) the trial court denied his motion for a continuance and thereby violated his constitutional rights; (2) the trial court committed prejudicial error in admitting certain testimony regarding conversations had between an officer and defendant at the time of arrest; and (3) the trial court committed prejudicial error in failing to designate certain witnesses, as a matter of law, to be accomplices and to instruct in the language of section 1111 of the Penal Code as to the necessity of corroboration of their testimony. Our reading of the record leads us to the conclusion that no prejudicial error was committed, and that the judgment should be affirmed. Const. Art. VI, § 4 1/2.
With respect to Count Three, Mrs. Luella May Coon testified that believing herself to be pregnant, she made an appointment with defendant and went to his residence on March 3, 1953, around 8:00 o'clock in the evening, and that Mrs. Black accompanied her. She was admitted to the front room by a woman. She told defendant of her belief in her pregnancy and told him that she 'wanted to get rid of it.' She paid the receptionist $350. She then removed her underclothes in the back bedroom and lay flat on her back on a table equipped with stirrups, into which she put her feet. Defendant entered the bedroom and started to make a pelvic examination. Mrs. Black remained with Mrs. Coon during the entire time. Mrs. Coon testified that she suffered such pain at the time defendant was working on her with his probing instruments that she cried out. Mrs. Coon then testified that defendant told her that if she was going to do that he could not go through with it 'on account of the neighbors in back.' Mrs. Black then told defendant to give back Mrs. Coon's money but defendant said nothing and went ahead. Defendant's receptionist gave her a hypodermic in her hip and a pill. Defendant told her that she could expect to flow three or four weeks later and that she should get in touch with him if she continued cramping and paining the way she did. Mrs. Coon was in defendant's treatment room about 30 minutes. Mrs. Coon furthered testified that she returned alone to defendant's residence about two weeks later. The same procedure was followed and she again suffered great pain. Mrs. Coon stated that she started to flow two weeks later, and that prior to her visit she had been in general good health and could have borne a child without injury to herself.
Mrs. Black, Mrs. Coon's companion, gave almost identical testimony, except, of course, as to what transpired subsequent to the first visit to defendant's residence. She also testified that she was present in the bedroom during the time that the alleged abortion was being procured, and that she knew what defendant was trying to do with the instruments. She testified that defendant entered the bedroom carrying the instruments in an old bucket, and that although she told the defendant that it would not be sanitary to use those instruments, he nevertheless used them. Mrs. Black testified that she held Mrs. Coon 'keeping her hands down because she kept clawing at him, trying to get away' when defendant, in trying to get her to bleed, used the instruments in a rough manner, which caused Mrs. Coon to suffer pain.
As to Count Two, Mrs. Ippolito testified that she believed herself to be pregnant, having missed a menstrual period. She testified that she previously had had a child; that she had been in general good health and could have borne a child without injury to herself. She went to defendant's residence on April 7, 1953, around 7:30 or 8:00 o'clock in the evening, and was accompanied by Mrs. Hart. She was admitted to the front room by a woman. She then spoke to a gray-haired man with glasses, the same one who examined her, and told him that she believed that she was pregnant because she had missed one of her menstrual periods. She told defendant that her divorce was not final, that she could not get married, that she had a very strict family 'and if we went through with it we would be disgraced and very much humiliated.' She paid defendant's receptionist $250. Mrs. Hart remained in the front room when Mrs. Ippolito went into the back bedroom. She then lay on her back on an operating table equipped with stirrups, into which she put her feet. Mrs. Ippolito testified that the gray-haired man used instruments in the pelvic examination, and that she felt pain, like a cramping pain. She was in the treatment room about 15 or 20 minutes. The receptionist told her that if she started to flow, to use a cold pack and stay in bed. Shortly thereafter, she started to flow.
Mrs. Hart testified that she accompanied Mrs. Ippolito to defendant's residence, and that they were driven there by Paul Cerrito, whom Mrs. Ippolito later married. She testified that defendant was the gray haired man with whom Mrs. Ippolito had talked in the front room. She also testified that prior to the night in question Mrs. Ippolito had told her that she thought she was pregnant but that she had not seen a doctor. Mrs. Hart thereafter phoned and made an appointment for Mrs. Ippolito, but did not say what the appointment was for. She did not accompany Mrs. Ipplito to the back bedroom, where the alleged abortion was performed.
Defendant admitted that he had made pelvic examinations of the two women and had used the surgical probing instruments identified by them, but he maintained that he did not perform any abortions, and that he merely examined them for pregnancy, which he did not find to exist in either case. A police officer, in the search of defendant's residence at the time of his arrest, found a small black notebook on the dining-room table. The notebook was properly identified and introduced in evidence. At the trial defendant was questioned about the entries under the dates April 7, 1953, and March 3, 1953. The entries appeared in abbreviated form; that is, the name of the person examined, followed by the numeral '8' and, following that, either '2 1/2' or '3 1/2.' When asked if those entries did not mean that on the particular date those parties had appointments at the hour of 8 and paid $250, and $350, defendant answered, 'possibly so.' He at first denied that the entries were in his hand, but later was in doubt as to who had made them. He admitted that he probably received the $250 and $350 in advance, as was his custom, and he supposed that his nurse had made some financial adjustment with the two women after he had discovered that they were not pregnant. The records for the months in question were in the physical possession of his nurse, whom he had not seen since April 25, 1953. He stated that his patients would come to his office on an average of twice a week for pre-natal care. Although defendant professed to know little about the aforementioned notebook and its entries, when asked if the book would show whether any patient had come to his office more than twice, he stated that it would not. He stated this without looking at the book, although he was given the opportunity to do so. Defendant's license did not permit him to sever or penetrate the flesh. He stated that his nurse must have acted on her own initiative when she gave Mrs. Coon the hypodermic, and that he didn't pay any attention to what she did.
Defendant contends that the court abused its discretion in denying his motion for a continuance of the trial, which was made on the day the case was called for trial. Penal Code, § 1050. Defendant's motion was made on three grounds: that the continuance was necessary so that defendant might have access to certain records to prepare his defense; that because of illness and disability resulting from a broken leg, his counsel had been unable to adequately prepare the case for trial; and that counsel had only three weeks to prepare for trial which, under the circumstances, was not a reasonable length of time.
At the time of defendant's arrest, certain books and records were taken by the police. They were brought into court in response to a subpoena duces tecum. These documents were not made available to defendant at the beginning of the trial. Defendant was not permitted to examine them until after the close of the prosecution's case on July 21, 1953. Defendant testified on that day. There were no proceedings on the next day. On July 23, 1953, defendant resumed his testimony, and on that date the defense rested its case. In the meantime defendant had an opportunity to examine the documents in question. In the absence of another request for a continuance after examination of these books, it does not appear how defendant was prejudiced in the preparation of his defense. People v. Owens, 132 Cal. 469, 471, 64 P. 770.
With respect to the alleged illness of defendant's counsel, it does not appear there was an abuse of discretion in denying the motion. Defendant was arrested April 28, 1953. The day after his arrest, counsel obtained his release on bail. In the meantime, counsel had broken his leg but he had the preliminary hearing continued until May 19, 1953, at which time he had been released from the hospital. Counsel, despite his injury, continued to represent defendant at every stage of the proceedings. Counsel appeared at the arraignment, June...
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