People v. Sarelli

• Decision Date: 21 February 1962
• Docket Number: Gen. No. 48487
• Citation: 34 Ill.App.2d 380,180 N.E.2d 722
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Frank SARELLI, Plaintiff in Error.
• Court: United States Appellate Court of Illinois

Page 722

180 N.E.2d 722

34 Ill.App.2d 380

PEOPLE of the State of Illinois, Defendant in Error, v. Frank SARELLI, Plaintiff in Error.

Gen. No. 48487.

Appellate Court of Illinois, First District, Third Division.

Feb. 21, 1962.

Julius Lucius Echeles, Chicago, for plaintiff in error.

Daniel P. Ward, State's Atty., Cook County, Chicago, John T. Gallagher, Dean H. Bilton, Asst. State's Attys., of counsel, for defendant in error.

McCORMICK, Presiding Justice.

Frank Sarelli, a defendant in this action, was indicted together with three others for conspiracy to cause an abortion on the person of a named woman, the indictment charging that such operation was not necessary to preserve her lie. Sarelli and one Castellano were tried together by the court without a jury in the Criminal Court of Cook County. The trial court found that defendants guilty. Castellano was fined $500, and Sarelli was fined $1,000 and sentenced to six months in the county jail. To review his conviction Sarelli sued out a writ of error in this court.

As grounds for reversal Sarelli urges that there was no proof appearing in the record that the abortion was not necessary to save the life of the complaining witness and that there is insufficient evidence to sustain the finding of the trial court.

The evidence in the record shows that a woman, nineteen years old at the time of the trial (hereafter referred to as the complaining witness), was pregnant. She went to her family physician, later a witness at the trial, who examined her and told her that in his opinion she was pregnant. She then talked to Castellano, who was responsible for her condition, and he refused to marry her. They then discussed the possibility of getting rid of the baby. She was undecided as to whether she would or not. Castellano gave her some pills intended to produce an abortion. On November 11, 1959 Castellano called the complaining witness on the telephone and told her that arrangements for the abortion were all taken care of, that he would pick her up after work, and that she should call her home and tell her mother she and Castellano were going out for dinner. On that date Castellano and an unidentified man picked her up after work and drove to approximately 7000 South Indiana Avenue in Chicago. They told her that they were taking her to a doctor, that they had to be there on time, and that the doctor knew what he was doing since he had done it before. Castellano and the stranger got out of the car and crossed the street to talk to Sarelli, who was sitting in a parked car. Castellano and his companion returned to the car and with the complaining witness drove away following the other car for a few blocks. Castellano, the complaining witness and the unidentified man got out of their car and joined Sarelli, who was in the other vehicle. Sarelli told the complaining witness that she did not have to worry about anything. She then got in the car with him and he drove to an apartment building near 7500 South Indiana Avenue. Castellano and the unidentified man followed in the other car. The complaining witness described the building and further testified that when she went to the apartment in the basement of the building with Sarelli a woman let them in and Sarelli asked whether 'Dr. Jim' was in. The witness identified the woman as Gwendolyn Stevens and stated she had seen her since. (Stevens was another defendant indicted for conspiracy, but she was not tried with Sarelli and Castellano.)

Sarelli and the complaining witness waited until a Dr. James Lyle came in. They introduced her to him and he went into the bedroom, put some white paper on the bed, and called the complaining witness into the bedroom. She stated to cry, the doctor walked out, and Castellano entered and told her not to worry about it and said that both of them had to think of their parents. The doctor then gave her a sedative and she started to get drowsy. She removed her clothing and laid down on the bed. Castellano had told her she had to go through with it. The doctor inserted a speculum into the vagina of the complaining witness. Castellano was present. The witness felt something sharp inside of her like a knife. The witness was screaming and the doctor said he could not go on because he had 'nosy neighbors.' Sarelli then came into the room and in the presence of Castellano and the doctor told the witness that she had to go through with it. The doctor then said that they should come back the next day and he would finish it. The witness then got dressed. The doctor gave her some pills to relieve her pain and the witness went home.

When she arrived home she was bleeding from the vagina and approximately two hours later she was taken to the hospital. Dr. Draa testified that he examined her and concluded that she was three months pregnant and it appeared likely that she would lose the baby. On November 13, 1959 she suffered a miscarriage and on November 14th Dr. Draa and Dr. Laranagus performed a curettement upon her.

Sarelli urges that the conviction must be reversed in that the record fails to show that the abortion was not performed in order to save the life of the complaining witness and that the evidence was insufficient to show that Sarelli was a party to a conspiracy to perform an illegal abortion.

There is no question that in order to prove the crime of abortion the State has the burden of proving it was not performed for the purpose of saving the mother's life. People v. Davis, 362 Ill. 417, 200 N.E. 334 (1936); People v. Hobbs, 297 Ill. 399, 130 N.E. 779 (1921); Beasley v. People, 89 Ill. 571 (1878). Sarelli argues that unless the State has proved that the attempted abortion was not necessary for the preservation of the complaining witness' life he could not be convicted of conspiracy. Sarelli was not indicted either for the commission of an illegal abortion or for an attempt. He was indicted for conspiracy to commit an illegal abortion. An illegal abortion under the statute is an abortion done for any other purpose than that of saving the mother's life.

In People v. Bain, 359 Ill. 455, 195 N.E. 42 (1935), the court says: 'Conspiracy is generally defined as a confederacy of two or more persons to accomplish some unlawful purpose, or a lawful purpose by some unlawful means. 2 Bishop on Crim. Law, (9th ed.) § 175; People v. Bain, 358 Ill. 177, 193 N.E. 137.' In People v. Nathanson, 389 Ill. 311, 59 N.E.2d 677 (1945), the defendant contended that there was no proof that the abortions were necessary for the preservation of life, and the court says:

'The evidence is quite sufficient to establish agreement and concert of action in operations which, in themselves, were for an illegal purpose. It is not necessary that the object of the conspiracy be accomplished. Ochs v. People, 124 Ill. 399, 16 N.E. 662; People v. Lloyd, 304 Ill. 23, 136 N.E. 505. If there was a common design, under these authorities, it would not be necessary to prove a condition existed which would enable the conspirators to commit an abortion. The gist of conspiracy is the illegal agreement, and it was for the jury to determine from the circumstances proved whether an agreement between plaintiff in error and unknown persons had been proved beyond a reasonable doubt....