People v. Kendall

• Decision Date: 19 May 1952
• Docket Number: Cr. 4750
• Citation: 244 P.2d 418,111 Cal.App.2d 204
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. KENDALL.

Page 418

244 P.2d 418

111 Cal.App.2d 204

PEOPLE v. KENDALL.

Cr. 4750.

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

May 19, 1952.

Rehearing Denied May 27, 1952.

Hearing Denied June 16, 1952.

William W. Larsen and John Marshall, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Stanford D. Herlick, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant was indicted on five counts of abortion. At the first trial one count was dismissed and the jury failed to agree on the others, hence a mistrial was ordered. At the second trial the jury brought in verdicts of not guilty as to two counts, but found the defendant guilty on the remaining two (counts II and III). Defendant appeals from the ensuming judgment and the order denying his motion for a new trial.

In July, 1950, having missed her regular menstrual periods, Jo Anne, accompanied by a friend, visited defendant's office. Defendant examined her and told her she was pregnant. Arrangements were then made for her to return in two weeks at which time defendant would perform an operation. She returned at the appointed time in August. She was in good health. At defendant's request she assumed a reclining position on a table. While in this position defendant again examined her with the aid of an instrument known as a vaginal speculum, commonly called a 'duck bill.' He then inserted a tube into her vagina, removing it shortly thereafter. There was no nurse present. When the procedure, which had taken fifteen or twenty minutes, was concluded, Jo Anne dressed, paid defendant $100 and departed for home. Feeling ill, she went to bed. During the ensuing period she experienced pain. About three or four o'clock the next morning she passed a fetus. When this took place she noticed the odor of pine oil which she described as similar to the odor of a liquid contained in a bottle found in defendant's home.

On February 1, 1951, Norma Jean, a married woman with three children, telephoned defendant stating she would like to speak to him about a personal matter. Thereafter, accompanied by her husband and a friend, she went to defendant's office and had a personal interview with him. When he was advised she had missed two periods and that her next period was due about the middle of February, defendant told her it would be better to treat her at that time. An appointment was made for February 12. On that date she appeared at defendant's office around 9:00 A.M. She was in good health. After waiting a brief period, defendant came in and asked her to undress from the waist down in an adjoining room. She took a position on a table in this room and defendant examined her. He left the room, shortly returning with some instruments. He first inserted a duck bill in her vagina, then a tube, and she felt a cramp. Defendant gave her a shot in the hip which he said was penicillin. There was no nurse present during the operation. Before she left, her husband, who had been waiting in the other room, paid defendant $100.

While in defendant's office Norma Jean had smelled nothing unusual, but when she arrived home she noticed a strong odor of pine, the same odor given off by the contents of the bottle found in defendant's bathroom. She passed a fetus in the bathroom of her home about 9:30 that evening.

These operations were performed at defendant's office on South Adams Street, in Glendale, on the front door of which appears 'Dr. J. Lane Kendall, Osteopath.' The records, however, of the State Board of Osteopathic Examiners failed to show that any license had been issued to defendant for the years 1950 and 1951. Defendant's residence was located directly behind the office. Officers searched defendant's home and found one bottle of pine oil in the bathroom cupboard, a vaginal speculum in a hall linen closet, and a soft rubber catheter and a Luer syringe. Jo Anne and Norma Jean recalled seeing such articles in defendant's possession at the time of their respective operations.

About a week before the Grand July indicted defendant he went to Jo Anne's place of employment and told her he had been arrested; that if anyone came to see her to be careful. After the indictment defendant, accompanied by his wife, again contacted her and asked her to change the story she had told the Grand Jury. He explained 'there was a way to do it without its being perjury.'

A few days before the Grand Jury hearing defendant called the husband of Norma Jean on the telephone and told him he could not have him and his wife testify before the Grand Jury.

Defendant's wife contacted two witnesses in the case concerning their testimony. She visited Jo Anne at her place of employment and Gayle (who was the alleged victim in count I on which defendant was acquitted) at her home. Mrs. Kendall's version of these meetings was that she merely told the woman she and defendant had heard there was a man in the abortion business who was holding himself out as Dr. Lane Kendall; that telephone calls had been received at defendant's office from this man's patients who were not known to defendant; that they had had the matter investigated; that the women were making a mistake in connecting defendant with their abortions; and that they had gone to the alleged impostor.

According to Gayle's mother, who was present at the conversation between Mrs. Kendall and Gayle, Mrs. Kendall stated she would pay all expenses of a month or six weeks if Gayle would leave the state. Jo Anne's version of her conversation with defendant's wife was that if she would leave the state and stay away until after the trial, Mrs. Kendall would pay her expenses. Also, she told Jo Anne she wanted her to testify that another Dr. Kendall committed the abortion rather than defendant.

According to the People's medical expert, pine oil may be introduced into a female's womb with the aid of the instruments found in defendant's possession, thereby terminating a pregnancy.

Defendant sought to establish an alibi. He did not, however, testify.

As grounds for reversal defendant contends the testimony of the abortees was not corroborated; the court erred in the admission and rejection of evidence; the instructions were incorrect; the court unduly restricted the cross-examination of the Inspector of the State Board of Osteopathic Examiners; and too much latitude was allowed in the cross-examination of Mrs. Kendall. None of these grounds is well founded.

In order to sustain a conviction of the crime of abortion the testimony of the woman upon whom the abortion has been performed must be corroborated by other evidence. Pen.Code, sec. 1108. In determining the sufficiency of such other evidence there are certain established legal principles that serve as guides. It must 'tend to connect the defendant with the offense,' but 'So long as corroborating evidence creates more than a suspicion of guilt, it is sufficient even though it 'be slight and, when standing by itself' entitled to but little consideration.' People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720; People v. Collins, 80 Cal.App.2d 526, 527, 534, 182 P.2d 585; People v. Malone, 82 Cal.App.2d 54, 61, 185 P.2d 870; People v. Allen, 104 Cal.App.2d 402, 411, 231 P.2d 896. The necessary corroboration may consist of inferences from the circumstances surrounding the criminal transaction. People v. Wilson, supra. It need not establish the precise facts testified to by the witness whose testimony it supports. (Ibid.) It is not necessary that the corroborative evidence prove the defendant is guilty of the offense. People v. Allen, supra, 104 Cal.App.2d at page 413, 231 P.2d 896. Such evidence is sufficient if it connects the defendant with the commission of the crime in such a way as reasonably to satisfy the trier of fact that the witness whose testimony it supports is telling the truth. People v. Trujillo, 32 Cal.2d 105, 111, 194 P.2d 681; People v. Henderson, 34 Cal.2d 340, 342-343, 209 P.2d 785; People v. Griffin, 98 Cal.App.2d 1, 26, 219 P.2d 519. The testimony of the woman upon whom the abortion is performed as to her good health does not require special corroboration. People v. Malone, supra, 82 Cal.App.2d at page 61, 185 P.2d 870.

'Whether the corroborating evidence by itself is as compatible with innocence as it is with guilt, is a question for the trier of fact, not for the reviewing court.' (Emphasis added.) People v. Estes, 99 Cal.App.2d 745, 747, 222 P.2d 454; People v. Allen, supra.

Applying these principles, it cannot be said as a matter of law that the corroborative evidence in this case is insufficient. It is established that the 'Testimony relating to one count may be considered by the jury in corroboration of the testimony of the woman upon whom an abortion was alleged to have been performed in another count.' People v. Malone, supra, 82 Cal.App.2d at page 63, 185 P.2d at page 876; People v. Collins, supra; People v. Allen, supra. Thus the testimony of Jo Anne and Norma Jean was mutually corroborative. One of the reasons for this is that the testimony of two people who independently went through the same procedure tends to establish the credence of both. The testimony of these women described in detail the same premises, the same instruments, and the same liquid abortifacient. The evidence of these women was further corroborated by the testimony of the officer relative to finding, in defendant's living quarters, equipment and a drug which could be used in performing an abortion. They testified to seeing such instruments in defendant's possession and described his use of them. The possession of such items by defendant served to corroborate their story. People v. Raffington, 98 Cal.App.2d 455, 461, 220 P.2d 967. Their testimony as to the use of the instruments and medicine 'does not need special corroboration.' People v. Wilson, supra, 25 Cal.2d at page 347, 153 P.2d at page 724. In this connection it must be remembered each woman testified that defendant used a...