People v. Reimringer

• Decision Date: 27 February 1953
• Docket Number: Cr. 2843
• Citation: 116 Cal.App.2d 332,253 P.2d 756
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. REIMRINGER et al

Page 756

253 P.2d 756

116 Cal.App.2d 332

PEOPLE v. REIMRINGER et al

Cr. 2843.

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

Feb. 27, 1953.

As Amended on Denial of Rehearing March 14, 1953.

Jay Graves, Robert H. Kroninger, Oakland, for appellant reimringer.

William T. Belcher, Jr., Oakland, for appellant Raegan.

Edmund G. Brown, Atty. Gen. of the State, Clarence A. Linn, Asst. Atty. Gen., Wallace G. Colthurst, Deputy Atty. Gen., Francis W. Collins, Dist. Atty. of Contra Costa County and Thomas F. McBride, Asst. Dist. Atty. of Contra Costa County, Martinez, for respondent.

NOURSE, Presiding Justice.

Defendants, tried together, were found guilty by a jury on four counts of abortion and one count of conspiracy. They appeal, represented by different counsel and filing separate briefs. Their attitudes have been different during all of the case. Both pleaded not guilty, but Raegan, in whose house the abortions took place, and who was contact man and assistant had admitted his part in a number of abortions before trial. Reimringer, a physician who allegedly performed the operations, constantly denied all knowledge of them. He testified in his own behalf, whereas Raegan did not testify. Reimringer urges insufficiency of the evidence, Raegan does not.

In the evening of August 31, 1951, police officers saw suspicious circumstances at Raegan's house and took it under observation. They saw a car arrive and somebody enter the house and return after eighteen minutes. He was followed and stopped and proved to be Dr. Reimringer. He said that he had been 'out for a ride.' He was brought back to the house where an aborted girl (Williamson) and instruments etc. of the abortion were found. The girl recognized Reimringer and told the story, later testified to at the trial, of the contact of her and her friend with Raegan, who brought her to the house, the preparation of a kitchen for the abortion, the appearance of the surgeon in operation mask and skull cap, the operation without anesthesia in the darkened kitchen, Raegan holding a flash-light, the payment of $500 in $20 bills. Raegan admitted and corroborated the story of Williamson. A notebook was found in his pocket containing dates, names and telephone numbers. He admitted that they related to prior abortions, all said to have been performed by Reimringer. A transcript of the statement of Raegan, containing the admissions and the notebook, was introduced in evidence only as against Raegan.

In one of Raegan's pockets $300 in $20 bills was found, in one of Reimringer's pockets $200 in such bills. Reimringer denied having been in the house or ever having seen the Williamson girl. Testifying at the trial he changed his position completely. He was the physician of Raegan's wife. On the evening of August 31 Raegan had called him because his wife was ill. He waited some time and stopped for a drink before going there, had a drink also at Raegan's, then Raegan asked him to examine Patricia Williamson, but he refused and when she became angry he left.

The abortion of Patricia Williamson constitutes the first count of the information, and the conspiracy to commit the abortion on her the fifth and last count. The second count relates to the abortion of Marilyn Lohmann on July 6, 1951, the third of Sharon Gallaher on August 9, 1951, and the fourth of Louise Carre on July 18, 1951. The facts and evidence in each of these three counts correspond with those of the first count except that all corroboration by observation of police officers is missing--the same place, the same transportation and the same preparation and assistance by Raegan and treatment by an unnamed physician wearing an operation mask. In each case the escort of the woman (husband or boy friend) could corroborate the contact with and transportation by Raegan, but the escort had no contact with Dr. Reimringer. Dr. Reimringer was identified in all cases by the patient, but during the treatment she had seen him only when wearing the operation mask and there were strong discrepancies in their descriptions of his complexion and eyes. As to all counts defendant Reimringer produced some alibi evidence over and above his own testimony.

Appellant Reimringer contends that the trial court was without jurisdiction to try the defendants on counts 2, 3 and 4, because the complaint and commitment by the committing magistrate related only to counts 1 and 5 whereas the other three were added on the basis of additional evidence introduced at the preliminary hearing to show a general scheme or plan. Parks v. Superior Court, 38 Cal.2d 609, 241 P.2d 521 disapproving People v. Wyatt, 121 Cal.App. 180, 8 P.2d 901 is cited for the unconstitutionality and invalidity of such added counts relating to different transactions. Respondent denies the restricted character of the commitment as not appearing in the record. It is further argued that section 996, Penal Code, excludes this objection on appeal if not made in the court below by motion to set aside. Although appellant moved to set aside the information 'upon all of the statutory grounds set forth in Section 995 of the Penal Code of the State of California, and in particular upon the grounds of lack of probable cause' argument was only presented to show lack of probable cause, and no error can be based on grounds not submitted and shown to exist below. People v. Hinshaw, 194 Cal. 1, 9, 227 P. 156; People v. Arnest, 133 Cal.App. 114, 120, 23 P.2d 812. Failure to move to set aside on the ground urged on appeal was not involved in Parks v. Superior Court, supra. For the fatal effect of the omission see People v. Harris, 219 Cal. 727, 729-730, 28 P.2d 906; People v. Greene, 80 Cal.App.2d 745, 749, 182 P.2d 576; People v. Ahern, 113 Cal.App.2d 746, 750, 249 P.2d 63.

Next appellant Reimringer urges that the evidence was insufficient to sustain the verdict and judgment because in each count the testimony of the woman on whom the abortion was committed was not corroborated as required by sec. 1108, Penal Code. With respect to the first count, his presence in the house of the crime observed by the police officers and his evasive and contradictory statements showing consciousness of guilt, People v. Malone, 82 Cal.App.2d 54, 64, 185 P.2d 870, undoubtedly connect him sufficiently with the offense. The main corroboration presented by respondent as to each of the other three abortion counts is that Dr. Reimringer was also recognized by the other women not involved in the count as the physician who operated on them. In law this is sufficient. '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. Kendall, 111 Cal.App.2d 204, 210, 244 P.2d 418, 423. In People v. Solano, 48 Cal.App.2d 126, 130, 119 P.2d 381, this court held that showing of another offense, similar in all respects, committed by the same defendant, and based on the same plan was good corroboration. The well proved abortion of the first count is then legally sufficient to corroborate the similar abortions in the other counts and the factual sufficiency is for the jury.

As to the conspiracy count the evidence seems sufficient as the existence of the agreement may be inferred from the acts and conduct of the defendants in mutually carrying out a common purpose in violation of a statute, People v. Sica, 112 Cal.App.2d 574, 581, 247 P.2d 72. The mutually carrying out of the abortion on Patricia Williamson, the only abortion as to which conspiracy is alleged, is sufficiently proved.

Both appellants complain of prejudicial misconduct of the trial court and the district attorney. They contend that numerous statements of the court prevented a fair trial. It is first said, illustrated with many examples, that the court unduly rushed the defense attorneys making it difficult adequately to represent their clients. The point is sufficiently answered by respondent that in this respect (and many others) no objections were made below, that the point was not even brought up on motion for new trial, and that the court only exercised the reasonable control over the proceedings which, as to interrogation of witnesses, is within sec. 2044, Code of Civil Procedure. Next appellant Reimringer complains of digressions by the court which are said to have created a camaraderie among judge, jury and prosecuting attorneys while ridiculing defendants and their counsel. A few digressions or humorous remarks do not constitute misconduct, People v. Williams, 32 Cal.2d 78, 84, 195 P.2d 393. Illustrations are given of an alleged difference in attitude towards counsel for the prosecution and for the defense, of which the strongest is said to be the holding of counsel for Raegan in contempt. Defense counsel interrupted the district attorney, allegedly because the district attorney in an argument brought objectionable matter before the jury, and the district attorney and counsel addressed the court simultaneously for some time until the court, after warning, held counsel in contempt. On the motion for new trial Dr. Reimringer's counsel (not the present one) praised the impartiality and courtesy of the court, and Mr. Belcher, present counsel of Raegan, stated that he was probably properly held in contempt. Next appellant Reimringer complains of comments of the court on evidence by which the court showed his feeling as to the facts. Counsel for defense had argued that when Raegan gave his statement to the authorities the conspiracy, if there were any, had ended because the treatment had ended, so that his statement was not binding on Reimringer. The court agreed with counsel saying that it felt that at said time 'the conspiracy had been consummated' without using a word like 'alleged' or 'if any'. In the context the failure to use such expression does not seem prejudicial. ...