People v. King

• Decision Date: 18 May 1951
• Docket Number: Cr. 2691
• Citation: People v. King, 104 Cal.App.2d 298, 231 P.2d 156 (Cal. App. 1951)
• Court: California Court of Appeals
• Parties: PEOPLE v. KING et al.

Page 156

231 P.2d 156

104 Cal.App.2d 298

PEOPLE v.KING et al.

Cr. 2691.

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

May 18, 1951.

Magee, Shortridge & Werlhof and Bruce A. Werlhof, all of Redwood City, for appellants.

Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice pro tem.

DefendantsRoss King and Kenneth Pierce were found guilty upon two counts of an indictment charging them with abortion and conspiracy to commit abortion.Their motion for a new trial was denied and this appeal is from the judgment of conviction and from the order denying the motion for a new trial.

Defendants and appellants do not attack the sufficiency of the evidence to support the judgments of conviction, nor do they contend that the jury was not fully, fairly and correctly instructed.They base their argument for reversal upon a number of asserted prejudicial errors occurring at the trial.

In view of the fact that no attack is made on the ground of insufficiency, it is not necessary to state the evidence in any detail.

It is sufficient to say that a woman who was pregnant visited the place of business of defendants in San Francisco and, after an examination, she was told that it would be safe to perform an abortion.She described to the jury what was done, and the instruments used on two different visits to defendants' place.Shortly after the second operation certain alarming symptoms developed which sent her to a reputable doctor (in no way involved in the illegal operation) who hospitalized her and thereafter operated and she seems to have recovered from what was apparently a serious condition.

Appellants' first contention is that the court erred in permitting Dr. Carr to answer the following hypothetical questions:

'Mr. Phelps: Q. I will ask another question, Doctor: Assuming the facts of the previous question--I am more used to being asked questions by doctors than asking of them--assuming the occurrences on Monday, the 24th, as I have asked you to assume and all the prior occurrences and facts as asked you to assume, what in your opinion, as a medical man, was being done by the person who was treating the woman on Monday--treating or working upon the woman on Monday evening, October 24, 1949?

'Mr. Hennessy: I object to that question as incompetent, irrelevant and immaterial, indefinite and uncertain, calling for an indefinite and uncertain answer, and an opinion.

'The Court: Overruled.

'The Witness: A.At that time material had been evacuated spontaneously far enough that the uterine contents were visible and part of them were undoubtedly in the vaginal canal.Those were seized by the hemostat, which is No. 12 in evidence, and by traction that material was being pulled out of the uterus.It is evident that was the case because the woman felt pain.

'Mr. Phelps: Q.In your opinion, on that occasion was an abortion being completed?A.That's right.

'Mr. Hennessy: That is a leading and suggestive question, your Honor.I move to strike it out.

'The Court: Overruled.'

Appellants argue that 'it is obvious that by these two questions the expert witness was directed by the prosecution questions to give an opinion on the ultimate, basic issue, and the law is clear that conclusions of this type are for the jury to make, and such testimony invades the province of the jury.'

The questions complained of were based on prior hypothetical questions which assumed the introduction of the vaginal electrode through the cervix of a pregnant woman and that it was allowed to remain for two hours, which Dr. Carr testified could cause an abortion.It appears from the record that the only objection made to the previous questions was that some of them did not correctly state the evidence but no objection was made that they invaded the province of the jury.The questions complained of, and the answers thereto, added little if anything to the previous answers of Dr. Carr, so it is difficult to understand how appellants could have been harmed by them.Furthermore, we do not believe that appellants made proper objections to the questions specifically complained of, as the objections should have been that the questions invaded the province of the jury and called for an opinion on an ultimate fact.It is only fair to state that appellants were not represented at the trial by the same counsel who represent them on this appeal.

Appellants cite sec. 74, p. 1778 of Witkins Summary of California Law where it is said: 'Opinions on Ultimate Issue.(a) The expert may give his opinion on any particular questions involved in a case, but that opinion cannot be accepted on the ultimate, basic issue, e. g., in a personal injury case, whether the defendant was negligent.It is said that conclusions of this type are for the jury to make, and the testimony invades the province of the jury.Thus, it is proper to ask a doctor whether a certain kind of operation or method is the customary practice of skilled physicians, but it is improper to ask whether such practice constitutes due care or negligence.Thomason v. Hethcock, 1935, 7 Cal.App.2d 634, 46 P.2d 832.It is likewise improper to ask whether the particular doctor defendant exercised ordinary skill in treating the particular patient.Criss v. Angelus Hospital Ass'n, 1936, 13 Cal.App.2d 412, 56 P.2d 1274.'Appellants also quote from People v. Crossan, 87 Cal.App. 5, at page 16, 261 P. 531, at page 536: 'Witnesses were also permitted, over appellant's objection, to testify as experts that flying with a loose magneto, or with only one gallon of gasoline in the tank, was not safe.There was other evidence tending to prove the existence of both of these conditions on appellant's aeroplane at the time in question.This testimony invaded the province of the jury and should not have been admitted.No doubt expert witnesses should be allowed to testify as to the probable consequences of flying with a loose magneto or a small supply of gasoline, but testimony that such flying was not safe went beyond the scope of expert testimony and covered the ultimate fact which the jury were required to determine.10 Cal.Jur. 1013, 1014.'

Counsel for respondent concedes that there are authorities in California and elsewhere holding that questions to experts hearing on the ultimate facts for the jury have been held inadmissible as a general rule, but they argue that there are exceptions to this rule.They cite People v. Wilson, 25 Cal.2d 341, 153 P.2d 720, which was an abortion case, and in which a doctor was permitted to testify that the abortion in question was not performed in order to save the woman's life.The Supreme Court in affirming the judgment of conviction said in 25 Cal.2d at page 348, 153 P.2d at page 724:

'The method of obtaining opinion evidence from an expert by hypothetical questions is unsatisfactory (citations), but it is at present the least objectionable known to the law.(Citation.)The trial court, however, should prevent the use of misleading or unfair hypothetical questions, permitting only questions that sufficiently specify the assumptions on which they are based and contain only such assumptions as do not contradict the weight of the evidence in the case.(Citations.)While each hypothesis contained in the question should have some evidence to support it, it is not necessary that the question include a statement of all the evidence in the case.The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question.(Citations.)All facts assumed in prosecuting counsel's questions in the present case were sustained by the evidence except the assumed fact that the abortion was performed for the preservation of Mrs. Anderson's life.This fact, however, if true, would have been favorable to defendant.

'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.'We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved.* * * Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.'(Citations.)In the present case there was no other practicable way of framing the questions if they were to serve the purpose of obtaining the benefit of the witness's expert knowledge as to matters on which enlightenment of the jury by the expert was proper.(Citations.)'

There is a very enlightening discussion of this question in Wharton's Criminal Evidence, 11th ed., Vol. 2, sec. 957, p. 1682, where it is stated:

'Two correlated questions arise in connection with the testimony of an expert witness as to the 'ultimate fact':

'(1) Whether an expert witness may testify as to his opinion as to 'the ultimate fact in issue.'

'(2) If he can testify as to the ultimate fact, whether his testimony must be in the form of an opinion, or whether it may be in the form of a fact.

'On the first question the courts, and in some instances the same court, have widely differed.In some cases it is held that such testimony is not admissible, on the ground that it invades the province of, and substitutes the witness for, the jury, the rule commonly announced being that an expert witness cannot give his opinion upon the very question or fact which is in issue and is to be determined by the jury.On the other hand, many other courts, and in some instances the same courts, in allowing an expert witness...