People v. Emory

• Citation: 192 Cal.App.2d 814,13 Cal.Rptr. 889
• Decision Date: 08 June 1961
• Docket Number: Cr. 7434
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Alexander EMORY, Defendant and Appellant.

Page 889

13 Cal.Rptr. 889

192 Cal.App.2d 814

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Alexander EMORY, Defendant and Appellant.

Cr. 7434.

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

June 8, 1961.

Rehearing Denied July 5, 1961.

Hearing Denied Aug. 2, 1961.

Dolman & Isaac and Alton I. Leib, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was charged in separate counts with murder (count I) and with having unlawfully procured an abortion (count II). In a nonjury trial the court found him guilty as charged and fixed the offense in count I as murder of the second degree. Motion for new trial was denied. Defendant appeals from the judgment (order granting probation) and from the order denying a new trial.

Viola Go consulted Dr. Norman Andresen in Salinas on August 11, 20, and 25, 1959. After a complete examination and a pregnancy test, he found she was pregnant and told her so. Dr. Andresen testified Viola was in good health at the time; he saw no reason why she should not go to full term; an abortion was not necessary to preserve her life.

Prior to September 4, 1959 Viola told her husband, George, she intended to have an abortion. Jean Dashut, George's former wife, testified that in early September 1959 Viola called her about an abortion; she (Jean) then called defendant and made an appointment to see him at 5 p. m. on September 4. On Friday, September 4, George drove Viola to Los Angeles and they went to a motel. George testified they then picked up Jean Dashut to have her take them 'to a place where they could get the abortion.' They went to a cocktail lounge on Osborne Avenue in the Van Nuys area of Los Angeles. George waited there Viola and Jean went out the back way to defendant's office. Jean went in to see if it was all right for them to go in. Defendant told her to come back in 5 or 10 minutes. They waited and went in. Defendant asked Viola if she had eaten in the last six hours. She said yes. Defendant told her to go to his home the next morning at 7 a. m. 'because sodiumpentathol or an anesthetic would make her sick.'

The next morning Viola, George, and Jean went to defendant's home. Defendant told George to wait in the living room, 'that it didn't take very long.' Defendant, Viola, and Jean went into another room. Viola was placed on her back on a table with her feet in stirrups. Defendant gave her a 'hypo.' Jean returned to the waiting room. About half an hour later she returned to the surgery room. Defendant was standing at the foot of the table. His face was very pale, and he was very nervous. Jean saw a bucket or pan on the floor containing what appeared to be tissue and blood, the product of an abortion at about two months. She had seen a similar product previously. About half an hour later defendant went into the living room and asked George, 'How far along did you say your wife was?' George said her last period was about June 15. George testified defendant said, "There's something real large up there. It seemed like she must be further along.' * * * that he would abort part of it, and that the other part could be after-birth or something else, but at any rate that he is not going to do no more, let her rest a while, and I understand that he gave her some ergot and let nature take its course.' George glanced in the other room; Viola was on her back on a table.

George remained at defendant's home with Viola until Monday night, September 7, leaving only to eat. He returned to Salinas, arriving Tuesday morning. There he saw a Dr. Husser and told him what had happened. Dr. Husser called Dr. William C. Bradbury, a specialist in obstetrics and gynecology in Santa Monica, said a patient who was a friend of his was in a serious condition in Dr. Bradbury's area from an abortion and asked if he would take the case. Dr. Bradbury said he would, and made arrangements for Viola's admission in Santa Monica Hospital. George returned to Los Angeles, arriving at defendant's home about 11 p. m. Tuesday, the 8th, and called an ambulance. Defendant told George to say, in case something happened, that Viola had already aborted herself and had come to him because she was hemorrhaging.

Dr. Bradbury testified Viola was admitted to Santa Monica Hospital at 1 a. m. on September 9 in critical condition. On entrance to the hospital Viola gave Dr. Bradbury's associate this history: '5 yrs ago--induced ab. Last Sat. had an induced ab. The operater knew he had perforated uterus so pt has been under med. supervision since. * * * No prior surgery other than induced abs. * * * O. B. History: L. M. P. 16 June 59.' At the hospital George talked to Dr. Bradbury and told him what had happened. At Dr. Bradbury's suggestion George called defendant and asked him to call Dr. Bradbury and tell him what he had done to Viola to assist Dr. Bradbury in his diagnosis and treatment.

On September 10 defendant telephoned Dr. Bradbury. Defendant told him he had put a placental forceps into Viola's uterus and it had gone all the way up to the handle, which he thought should not happen in a patient two-months pregnant; when he pulled the forceps down it had a loop of intestine attached to it; he pushed the intestine back and put the patient to bed. Dr. Bradbury asked if he thought any injury had been done to the intestine. Defendant said, 'I don't know; it might have'; he had given her some intravenous fluids and one transfusion and had transferred her to his home to take care of her.

Dr. Bradbury called in the services of Dr. David Sprong, a specialist in surgery of the bowel. Viola's case history, as taken by Dr. Sprong on September 10, 1959, was read into the record and is quoted in the margin. ¹

On September 10, 1959 Dr. Sprong, assisted by Dr. Bradbury, operated on Viola. During the operation Dr. Bradbury found: a perforation in the posterior aspect of the top of the uterus with a plastic exudate over it; a laceration of the small bowel; generalized peritonitis; 'quite a bit' of food and extensive contents from the bowel in the abdominal cavity; a markedly inflated bowel; an intestinal obstruction; a marked dilatation with loops of intestine throughout the abdomen; and a tear in the mesentery with some interference with the blood supply of the bowels. Dr. Bradbury testified the perforation of the uterus and the tear in the small bowel had been made within 10 days prior to the operation; at the time of the operation Viola 'was suffering from severe generalized peritonitis from contents of the bowel pouring out into the abdominal cavity.' He testified further that if a woman is pregnant, it is not customary medical practice to insert instruments into the uterus; to do so is 'apt to cause an abortion.'

Dr. Sprong operated again on September 29 because of an abdominal abscess. Viola passed away on September 30. In Dr. Bradbury's opinion 'death was caused by post-abortive infection with laceration of the bowel, generalized peritonitis, multiple abscess formation in the abdomen with a secondary hemorrhage.'

An autopsy was performed. The autopsy surgeon found markings on the endocervical canal which indicated that an instrument such as a curette or one with prongs on it had passed through the cervical canal. He found a blood clot and necrotic tissue in the uterine cavity, and hemorrhage in the posterior wall of the uterus near the top. In his opinion, an abortion had been done and the cause of death was intraabdominal hemorrhage and peritonitis due to an abortion with perforation of the uterus.

On October 1, 1959 Officer Mitchell of the Los Angeles Police Department went to defendant's home. He told defendant Viola died the day before and he was investigating her death. In response to questions of the officer, defendant stated: he had treated Viola at his home; he had inserted inside her uterus a pair of forceps with a pointed end and serrations acting as teeth for gripping; when he removed the forceps 'a loop of gut' was adhering to it; the 'gut' was grasped in the pointed end of the forceps and held by the serrated ends; when he saw this 'loop of gut' he was a little confused as to what it was; he examined it, determined it to be 'gut,' pushed it back in, and put Viola to bed at his home; when he did this, he was examining her.

Officer Mitchell asked defendant what his purpose was in examining Viola. Defendant hesitated a few moments and said, 'I don't think I had better answer that.' Defendant was then told he was under arrest for murder and abortion. Mitchell asked defendant to show him where the incident had taken place and said he wanted to look through the house. Defendant directed Mitchell and other officers who had appeared at that time to a building in the rear of the house. The room they entered was equipped with a gynecological table, numerous medical instruments, and medicines. Defendant was asked to produce 'his patient record file, the clinical card, or any record he had made' of Viola. Defendant said he had not made any record of her visit. Asked if anyone else made records of his patients, defendant said his wife sometimes did. In the presence of defendant, Mitchell asked his wife if she had made any record of Viola's visit or what had been done to her. She said she had not; defendant said nothing.

Defendant told the officers he had called Dr. Bradbury and had told him he had inserted the instrument into Viola's uterus. Officer Mitchell asked 'why he would jeopardize his license and his livelihood for the small amount of money he got for doing abortions.' Defendant replied 'that he did a lot of things that he knew were wrong; that they were against the law, but that he had a hard time making enough money to pay his family expenses, and so forth. * * * [T]here were many girls who came to him who had done something to themselves, and that he would go...