People v. Miner

• Decision Date: 09 February 1950
• Docket Number: Cr. 726
• Citation: 96 Cal.App.2d 43,214 P.2d 557
• Parties: PEOPLE v. MINER et al.
• Court: California Court of Appeals Court of Appeals

Page 557

214 P.2d 557

96 Cal.App.2d 43

PEOPLE v. MINER et al.

Cr. 726.

District Court of Appeal, Fourth District, California.

Feb. 9, 1950.

Rehearing Denied Feb. 21, 1950.

Hearing Denied March 9, 1950.

William F. Reed, San Diego, for appellants Miner and Cordon.

Thomas Whelan, Ann Wansley, San Diego, for appellant Page.

Fred N. Howser, Attorney General, Stanford D. Herlick, Deputy Attorney General, James Don Keller, District Attorney, Ronald Abernethy, Deputy District Attorney, San Diego, for respondent.

BARNARD, Presiding Justice.

In Count I of an indictment the appellants were charged with the crime of conspiracy in that during the period from June 1, 1947 to October 8, 1948, they conspired together to commit the crime of abortion. Six overt acts were alleged in that connection. In Count II Miner and Cordon were charged with the crime of abortion in that on September 3, 1948, they wilfully and feloniously employed an instrument and other means on the person of a certain woman with the intent to procure a miscarriage, the same not being necessary to preserve her life. In Count III Miner and Cordon were charged with a similar offense upon the person of another woman. In Counts IV, V, VI and VII Page and Cordon were charged with similar crimes in connection with four other women. A jury found all of the appellants guilty as charged in the respective counts, except on Count II which was dismissed. They were all sentenced to the state prison for the term prescribed by law, the sentences as to each one to run concurrently. They have each appealed from the judgment of conviction and from an order denying a new trial.

The appellants Miner and Page were chiropractors occupying certain premises in San Diego. From June 9, 1948 to September 22, 1948, these premises were under observation by an investigator for the district attorney's office. During that period a large number of women were observed coming to and going from these premises.

On the evening of September 19, 1948, two investigators entered these premises with the intention of installing a dictaphone. While there they observed various objects in the operating room, including an operating table covered with a sheet, and a hose and connection similar to one which was admitted into evidence. Before they accomplished their purpose they heard a lady's voice say 'there is someone here,' and then a voice called out 'Laura' in a questioning tone. The investigators then left the premises through a window. The next morning a notice was found posted on the door of the office reading: 'Office closed indefinitely. Hours by appointment.' On that morning Page and Cordon were seen in animated conversation on the front porch. Shortly thereafter a car with several women in it was seen leaving the rear of the premises. During the morning a number of women came to the door and some remained until Cordon returned at 12:30 P.M. They entered with her and then left within five minutes. In the afternoon of that day Miner and Cordon were seen driving out of the alley in the rear of the premises.

Photographs were taken of the interior and exterior of these premises, which were introduced in evidence. Various objects taken from the premises were also introduced. An operating table was found in what had been a kitchen, standing near the sink. A rubber hose with an attachment thereto, which was identified as an 'aspirator', was seen on the sink during the investigation, but was missing when the other objects were removed. An 'X-ray mirror' was found installed between the office and the reception room which permitted anyone in the office to see who was in the reception room, although a person in the reception room could not see into the office. A pressure tank and pump was also found in this operating room. The city plumbing inspector testified that the use of this would increase the normal water pressure, that such equipment should be inspected to prevent back siphonage into the water system, and that the installation of this equipment on these premises had never been inspected by his department. The only reasonable inference is that this device was used to increase the efficiency of the aspirator. There is evidence that an aspirator is an arrangement whereby a stream of water creates a vacuum and produces suction. Many of the things taken from this operating room had blood stains upon them. Speculums and heating pads were among the things found there. A witness identified a speculum as one he had repaired for the appellant Miner. A witness testified that she came to the premises on the afternoon of September 20, 1948, for the purpose of having an abortion performed, and that another lady entered just ahead of her. The appellant Cordon called the other lady into the office and closed the door. In a short time the other lady reappeared and left the premises. Thereupon this witness was taken into the office where she was told by Cordon that no business was being done that day; that they were having a 'slight investigation'; that they would have to be very careful; and to come back the next Monday if she still wanted anything done. She returned on September 27, and found a note on the door reading: 'Office closed indefinitely. Gone to the East Coast.'

The women directly involved in Counts III to VII, inclusive, testified as to what occurred on the respective counts. The procedure was about the same in each instance. The woman went there for an abortion; was interviewed by the defendant Cordon; was told that the fee for an abortion was $100; and an appointment was made. When the witness returned $100 was paid but no receipt was given. The witness was then taken to a resting room and requested to remove her clothing. Later she was taken to the operating room, placed on the operating table with her feet in the stirrups, and a sheet placed over her knees so that she did not have a full view of all that was done. The doctor then came in and proceeded with the work. They all felt pain or had cramps, and saw or heard water running out of the tap into the sink. Most of them observed a rubber tube similar to the one introduced in evidence, which was connected to the faucet in the sink, and some felt a scraping sensation in the abdomen and heard a suction sound. After the work was finished the woman was taken to a resting room and given an electric heating pad. After a short rest they were allowed to go home.

There was some additional testimony with respect to the particular counts. The women involved identified Cordon as the nurse, and Miner or Page as the doctor. On Count III the woman testified that she was taken to these premises by a man named Brett, and that he picked her up later; that she gave the nurse a sum of money but did not know the amount; and that this money was given her by Brett. Brett testified that he went to these premises first and made the appointment; that he then brought the woman to the premises and gave her $100 in currency; and that while she was in the office he waited about forty-five minutes for her and then took her home. On Count IV the woman testified that before going to the premises she discussed the purpose of her visit and the amount of money involved with her husband; that her husband met her there on September 17; that pursuant to instructions given her by Cordon she returned on September 20, 1948; that Cordon then ment her and asked her to leave because they were expecting some investigators. Her husband testified that he had discussed with her the purpose of her visit to this office and the amount of the fee, and that by prior arrangement he met her there on September 17. On Count V the woman testified that she went to her appointment accompanied by two friends, and that Dr. Page said she 'didn't recommend abortions every six months.' She further testified that Page had treated her in a similar manner about six months before, and that she had paid Cordon another $100 on that occasion. The two friends testified that they took this woman to these premises on or about September 1, 1948, and that after driving around they came back later and picked her up. On Count VI, the woman testified that she was accompanied to the premises by a certain friend. This friend testified that she went there with this woman and knew her purpose in going there; that while she was waiting in the reception room she saw several other women go into the office; and that she observed that the door between the reception room and the office was locked after people entered. On Count VII the woman testified that on August 30, she went to these premises accompanied by her sister. Her sister testified that she knew the object of the visit and that they had discussed the subject of money prior thereto; that she accompanied her sister to the premises; that her sister went into the office and the door was closed; and that a little later her sister asked her to leave and stay away for an hour.

For the purpose of showing intent, evidence was introduced of four other similar offenses in June and August, 1948. In each instance the testimony of the women involved disclosed the use of the same plan and method of operation as that shown by the testimony on the various charges of the indictment. As against the appellant Miner, the testimony of another chiropractor was introduced. He testified that before the trial Mrs. Miner came to him and told him he would probably be called as a witness at the trial and asked his help, and that he told her he would be willing to help her if she was not guilty but not otherwise. He testified: 'I then asked her point blank, 'Are you guilty?'. She hung her head, did not answer me and pulled out several pictures of her children.'

Except with respect to the conspiracy count, it is not contended that the evidence, if it is to be accepted, is not sufficient to support the verdicts. It is contended, however, that there was not sufficient corroboration...