People v. Gallardo

• Citation: 257 P.2d 29,41 Cal.2d 57
• Decision Date: 15 May 1953
• Docket Number: Cr. 5338
• Court: United States State Supreme Court (California)
• Parties: PEOPLE v. GALLARDO et al.

Page 29

257 P.2d 29

41 Cal.2d 57

PEOPLE v. GALLARDO et al.

Cr. 5338.

Supreme Court of California, in Bank.

May 15, 1953.

Fred N. Howser, Arcadia, Leonard Wilson, Glenn A. Lane, Ralph R. Sleeper, Los Angeles, and Robert P. Dockeray, Burbank, for appellants.

Edmund G. Brown, Atty. Gen., Frank Richards, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Albert K. Lucas, Deputy Dist. Attys., Los Angeles, for respondent.

GIBSON, Chief Justice.

Defendants Gallardo and Glynn were charged in four separate indictments, embracing a total of twenty-two counts, with performing abortions in violation of section 274 of the Penal Code, ¹ conspiracy to induce abortions and attempts to perform abortions. The cases were consolidated for trial. Six counts were dismissed, and Gallardo and Glynn were convicted on the remaining counts, namely, twelve counts of abortion, one of conspiracy and three of attempted abortion. ² They have appealed from the judgments and sentences, and from an order denying their motions for a new trial. No appeal lies from the sentences, and the appeals therefrom must be dismissed. Pen.Code, § 1237; People v. Tallman, 27 Cal.2d 209, 215, 163 P.2d 857; People v. Clark, 106 Cal.App.2d 271, 273, 235 P.2d 56.

As grounds for reversal defendants contend that the judgments are not supported by substantial evidence and that errors were committed in admitting evidence and instructing the jury.

Sufficiency of the Evidence.

Glynn, who is not a doctor, owned and operated an establishment, consisting of a hospital and medical offices, which was under surveillance by the police during the month of March, 1950. On the last day of the month the police entered the premises while Gallardo, a licensed osteopathic physician and surgeon, was attending a woman patient in an operating room. Upon hearing the noise made by the officers, Gallardo removed an instrument from the woman's body, threw the instrument into a washroom, and ran out into the back yard where he was arrested. Glynn was arrested shortly thereafter in an alley at the rear of the property. He then had in his possession over $2,000 in cash and a piece of paper which contained the names of three of the twelve women upon whom abortions were assertedly performed. The police also obtained from the hospital and from Glynn records containing the names of all but two of the twelve women.

When Gallardo was arrested he told one of the officers 'I never should have come here today * * *. I have tried many times to withdraw from this association * * *. At one time I tried to get money for a health plan for my people * * *. I talked to Henry Glynn about it, and we got together and this is a result of that * * *. I had to go ahead with it because of my financial commitments * * *. I was hooked * * *.'

The twelve women named in the abortion counts testified, and it can be inferred from their testimony that each of them was pregnant and desired to terminate her pregnancy, that she went to Glynn's establishment for the purpose of obtaining an abortion and that some one there used instruments on her in order to accomplish that purpose. The women, with one exception, made some or all of the arrangements for their operations with Glynn. The one who made no direct contact with him dealt with Mrs. Chelini, a defendant who pleaded guilty. Eight of the women paid Glynn in advance sums ranging from $200 to $600. Two women paid Mrs. Chelini, who testified that she gave part of the money to Glynn. The remaining two paid $450 each to Mrs. Schroeder, who accompanied them to Los Angeles and who was also a defendant pleading guilty. Eleven of the women who visited the hospital were relieved of their pregnancies, and Gallardo was using an instrument on the twelfth one when the police entered.

Gallardo, testifying in his own behalf, admitted that he made a physical examination of the reproductive organs of eleven of the women and that in some instances he performed operations which required incisions in the lower portion of the abdomen. He denied, however, that anything he did was for the purpose of procuring a miscarriage. Gallardo testified that he did not examine or treat the other woman, but she indentified him as the person who performed an abortion upon her.

Defendants contend that the evidence is insufficient to support convictions on the counts charging abortions in that the prosecution failed to establish that the operations were not necessary to preserve life within the meaning of the exception contained in section 274. We have found no case directly in point in California, and we adopt the rule followed by the weight of authority which requires the prosecution to establish as a part of its case that the operations were not necessary to preserve life. See Fitch v. Commonwealth, 291 Ky. 748, 165 S.W.2d 558; State v. De Groat, 259 Mo. 364, 168 S.W. 702, 706-707; State v. Montifoire, 95 Vt. 508, 116 A. 77, 49; 153 A.L.R. 1218, 1266-1277. The fact that an operation was not necessary to preserve life may be shown by evidence that the woman was in good health before the operation, and her testimony as to her physical condition is sufficient on this issue. People v. Emery, 79 Cal.App.2d 226, 231-232, 179 P.2d 843; Murphy v. Board of Medical Examiners, 75 Cal.App.2d 161, 166, 170 P.2d 510; People v. Card, 40 Cal.App. 22, 24, 180 P. 53; see People v. Balkwell, 143 Cal. 259, 262, 76 P. 1017; People v. Malone, 82 Cal.App.2d 54, 59, 61, 185 P.2d 870; 153 A.L.R. 1218, 1270. All of the women except one testified that they were in good health, thus meeting the burden of the prosecution with regard to the statutory exception. Gallardo admitted that he performed an operation on the twelfth woman but testified that the purpose of the surgery was to remove her appendix and that it was not a 'therapeutic abortion.' The jurors obviously disbelieved Gallardo's statement that the operation was not intended to induce a miscarriage, and the evidence justifies a finding that an abortion was performed and that it was not necessary to preserve life.

A defendant charged with abortion 'cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence.' Pen.Code, § 1108. Corroboration is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the woman is telling the truth. ³ See People v. Miner, 96 Cal.App.2d 43, 49-50, 214 P.2d 557; People v. Malone, 82 Cal.App.2d 54, 61, 185 P.2d 870; People v. Lorraine, 28 Cal.App.2d 50, 53, 81 P.2d 1004; People v. Lee, 81 Cal.App. 49, 53, 252 P. 763; cf. People v. Wilson, 25 Cal.2d 341, 346-347, 153 P.2d 720; People v. Barclay, 40 Cal.2d 146, 252 P.2d 321; People v. Trujillo, 32 Cal.2d 105, 111, 194 P.2d 681. It has been held that the corroborative evidence need not by itself establish that the crime was committed or show all the elements thereof, but it must relate to some act or fact which is an element of the offense. See People v. Barclay, 40 Cal.2d 146, 252 P.2d 321; People v. Yeager, 194 Cal. 452, 473, 229 P. 40; People v. Robbins, 171 Cal. 466, 469-471, 154 P. 317; People v. Josselyn, 39 Cal. 393, 400-401; People v. Lee, 81 Cal.App. 49, 53, 252 P. 763. It must create more than a suspicion, but it may be sufficient even though slight and entitled to but little consideration when standing by itself. ⁴ See People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720; People v. Kempley, 205 Cal. 441, 455-456, 271 P. 478.

A woman who has submitted to an abortion is not an accomplice of the persons charged with procuring or conspiring to procure the miscarriage. People v. Buffum, 40 Cal.2d 709, 256 P.2d 317; People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; People v. Clapp, 24 Cal.2d 835 et seq., 151 P.2d 237. The testimony of any one of the twelve women can be corroborated by that of a witness who was an accomplice, for example Gallardo or Chelini, and the testimony of the accomplices can be corroborated by that of any one of the women. People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; People v. Clapp, 24 Cal.2d 835, 837 et seq., 151 P.2d 237. Moreover, any one of the women upon whom an abortion was performed can act as a corroborating witness with respect to matters which she may have observed that are relevant to another count charging the performance of an abortion upon a different woman. Cf. People v. Jones, 36 Cal.2d 373, 378, 224 P.2d 353 (victims of separate thefts by false pretenses); People v. Owens, 28 Cal.2d 191, 193, 168 P.2d 945 (different accomplices of defendant in separate illegal wagers).

As to three of the charges, there is sufficient corroborative evidence without resort to the testimony of the women named in other counts, but as to each of the remaining charges there is not sufficient corroboration unless it can be found in the testimony of the women involved in the other eleven counts. It is not necessary to recite the testimony referred to with respect to the three counts first mentioned because we have concluded that the independent we have concluded that the independent testimony of the twelve women, of Gallardo and Chelini, is mutually corroborative in that it shows that each abortion was committed in a similar manner following the same procedure. Although the testimony of one woman that a person performed an abortion upon her is not of itself sufficient to corroborate the testimony of a second woman that the same person committed an abortion upon her, cf. People v. Darby, 64 Cal.App.2d 25, 30-32, 148 P.2d 28; People v. Thompson, 69 Cal.App.2d 80, 90-91, 158 P.2d 213, it has been held that there is sufficient corroboration if the independent testimony of the women shows that each abortion was committed in a similar manner. See People v. Reimringer, 116 Cal.App.2d 332, 253 P.2d 756; People v. Kendall, 111 Cal.App.2d 204, 210-211, 244 P.2d 418; People v. Allen, ...