People v. Schmitt, Cr. 5726

• Court: California Court of Appeals
• Writing for the Court: SHINN
• Citation: 317 P.2d 673,155 Cal.App.2d 87
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman W. SCHMITT and R. Evelyn Alvord, Defendants, Norman W. Schmitt, Defendant and Appellant.
• Docket Number: Cr. 5726
• Decision Date: 08 November 1957

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317 P.2d 673 155 Cal.App.2d 87 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Norman W. SCHMITT and R. Evelyn Alvord, Defendants,
Norman W. Schmitt, Defendant and Appellant. Cr. 5726. District Court of Appeal, Second District, Division 3, California. Nov. 8, 1957.
Rehearing Denied Dec. 2, 1957.
Hearing Denied Dec. 30, 1957.

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[155 Cal.App.2d 91] Caryl Warner, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Joseph P. Busch, Jr., Deputy Dist. Atty., Los Angeles, for respondent.

SHINN, Presiding Justice.

By indictment Dr. Norman W. Schmitt and Dr. R. Evelyn Alvord were accused of conspiracy (Penal Code, § 182, subd. 1), and of conspiring with Faye Reed to violate section 484 of the Penal Code (theft) and section 17500 of the Business and Professions Code (false advertising). The indictment set out thirteen overt acts allegedly committed in furtherance of the conspiracy. Upon a jury trial, defendants were found guilty of conspiracy to commit grand theft. They made motions for a new trial, which were denied. Proceedings were suspended as to Dr. Alvord and she was placed on probation for three years on condition that she pay a $1,000 fine. Proceedings were likewise suspended as to Dr. Schmitt and he was placed on probation for five years on condition that he serve the first year in the county jail and pay a $5,000 fine. ¹ Schmitt appeals from the judgment (Penal Code, § 1237), and the order denying him a new trial. Dr. Alvord has not appealed.

The conviction of Dr. Schmitt was based upon evidence of the following facts. He is a licensed chiropractor and has practiced in Los Angeles since 1936. We shall refer to him hereinafter as defendant. From June 1953 until March 1955 Faye Reed worked in his office as a receptionist and nurse; her duties included the taking of patients' case histories and the giving of treatments with a machine called an oscilloclast. Dr. Alvord is licensed as an osteopath in Missouri and Kentucky. Although a resident of California since 1945, she has not applied for a license in this state. Beginning in 1953, Dr. Alvord analyzed blood samples which Dr. Schmitt sent to her home in Costa Mesa, using a machine called a radioscope. The radioscope and the oscilloclast will be described at a later point in our opinion.

[155 Cal.App.2d 92] October 12, 1953, defendant was consulted by Charles Stamps, who told him that Mrs. Stamps was suffering from cancer, that she had had four operations, and that

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she was unwilling to submit to a fifth operation for removal of a rectal cancer, which her physician, Dr. Ralph Byrne, had advised her to do. Defendant said: 'Oh, don't let him take that off. I believe that I can cure that without an operation.' He also said that he could detect the presence of cancer through a blood test and that he had cured 500 to 600 cases of cancer in his office.

The following day, Mrs. Stamps went to Schmitt's office, where Mrs. Reed extracted a sample of her blood. The blood was wrapped in tinfoil and sent to Dr. Alvord. Several days later, Schmitt told Stamps that he had good news from the laboratory. He said that Mrs. Stamps had an enlarged heart, tuberculosis, and a scattering of cancer in the colon; the growth on her buttocks was not a cancer but was a fatty tumor. He stated that he could guarantee a cure after two or three months' treatment with an oscilloclast. Shortly thereafter, Mrs. Stamps began taking oscilloclast treatments at defendant's office; she went several times a week and paid $2.50 a treatment. In January 1954, Mrs. Stamps had another blood test and defendant told her husband that the tuberculosis was clearing up and her heart was returning to normal. When Stamps complained that the growth on his wife's buttocks was increasing in size and causing her severe pain, Schmitt said: 'Oh, that is just fine. That shows that this machine, this electricity is drawing all the cancer from the body. It is killing the cancer and drawing it into this fatty tumor.' The treatments continued until June 1954, when Mrs. Stamps could no longer sit down, due to the size of the growth; defendant told Stamps that his wife was overcharged with electricity and needed a rest. By that time, Stamps had paid defendant nearly $200 for blood tests and treatments with the machine. August 15, 1954, Stamps telephoned defendant about his wife's condition and defendant advised him not to call Dr. Byrne. The following evening, Schmitt paid a visit to Mrs. Stamps in order to see the growth, which he had not previously examined; it was then the size of an orange. He cut some of it off and told Stamps that the wound would heal in a few days, that the oscilloclast had drawn all the cancer in Mrs. Stamps' body into the fatty tumor, and that she would never again be troubled with cancer. Early the next month, however, Mrs. Stamps underwent an operation [155 Cal.App.2d 93] for the removal of a rectal cancer. The operation was performed by Dr. Byrne, who had first examined Mrs. Stamps in 1952. He testified that he had diagnosed the growth at that time as a malignant tumor. Mrs. Stamps died of cancer in September 1955.

Hazel Snyder consulted defendant in April 1954, giving a history of pain in her side and a lack of pep and vitality. Defendant said 'We will take a blood test and see what is wrong with you.' A few days later he read to her from a sheet of paper what he said were the results of a laboratory analysis of her blood showing that she had a cancerous irritation originating in the colon and cancers in the thyroid and neck. Schmitt told her that he had had twenty-two unsuccessful operations for cancer of the rectum, but was cured with the oscilloclast. He stated that a year's use of the machine would cure her condition. Thereupon Mrs. Snyder began taking regular treatments at defendant's office, for which she paid a total of $500. She discontinued the treatments after a year and consulted Dr. Charles Muller, a qualified physician, complaining that she still had a pain in her side and felt tired and worn out. Dr. Muller gave her a complete physical examination. He testified that Mrs. Snyder was suffering from a mild liver irritation, had a normal (though enlarged) thyroid, and was overweight. He found no evidence of cancer. After treatment for her overweight condition, Mrs. Snyder's health improved considerably.

In the latter part of 1954, Mr. and Mrs. Enrique Patt took their children, Bonnie and Lorry, to see defendant. Schmitt told Mrs. Patt that he didn't like Bonnie's complexion and suggested a blood test. He took blood samples from Bonnie and the

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other members of the Patt family. Shortly thereafter, he told Mrs. Patt that Bonnie had a low blood count, which was due to a dormant cancer in the spleen and a tubercular infection in the liver, but that the oscilloclast would restore the electrons in her daughter's system to normal within six to eight months. He said that Mrs. Patt had low grade tuberculosis in the chest, sinus and pelvis, and benign tumors in the uterus and cranium. He also said that Lorry was suffering from malfunction of the endocrine glands and osteomyelitis of both eyes; there was some non-malignant cancer in Lorry's spleen, bone marrow and cranium. The Patts rented an oscilloclast from defendant at a rental of $30 a month and used the machine for several months at their home. [155 Cal.App.2d 94] Mrs. Patt testified that the treatments were discontinued when Faye Reed told her that the machine was a fraud.

Mrs. Swannie Schaafsma brought her son, Lauren, to defendant's office sometime in 1953. Lauren was unable to walk or talk and was confined to a wheel chair; he was three and a half years old. His mother told defendant that Lauren's condition had been diagnosed as cerebral palsy but Schmitt said that a blood test would determine what was wrong with him. Defendant took a sample of the boy's blood, and when Mrs. Schaafsma returned for the results of the laboratory analysis, defendant told her that Lauren had tuberculosis and adhesions of the spine and that scar tissue in his central nervous system had affected his reflexes. Schmitt said that Lauren 'can be cured within a year, after a year's treatment he will be walking.' The boy received treatments with the oscilloclast during the ensuing year, for which Mrs. Schaafsma paid between $400 and $500. Additional blood tests were taken every month and after each test defendant told Mrs. Schaafsma that her son was getting better. She testified that Lauren's condition at the time of the trial was the same as it had been when she first consulted Schmitt, except that he had grown.

A similar series of events was described by Mrs. Clare Spalliero, who took her son, Butch, to see defendant in October 1953. Mrs. Spalliero told defendant that Butch was a spastic and was unable to talk, and asked him if he could help; Schmitt replied that as soon as he took a blood test, he could tell whether he could help or not. Several days later, Schmitt told her that Butch had tuberculosis and cancer of the brain and spleen. He said that the boy would be completely normal after a year's treatment with the oscilloclast. Butch took the treatments for nearly a year and a half, for which his mother paid defendant about $400.

The Schaafsma and Spalliero boys had been examined by Dr. Robert Sedgwick in 1952. Dr. Sedgwick, a qualified physician specializing in neurology, testified that Lauren Schaafsma was afflicted with cerebral palsy, which was due to the failure of his brain to develop; he found no evidence of tuberculosis or spinal adhesions. He stated that the Spalliero boy was suffering from maldevelopment of the brain, and that he had found no indication of cancer or tuberculosis. It was his opinion that both children had sustained irreparable brain damage and that medical science had no known cure...