People v. Thomas

• Decision Date: 10 August 1967
• Docket Number: Docket Nos. 13,221,No. 1,1
• Citation: 152 N.W.2d 166,7 Mich. App. 519
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred W. THOMAS and Alexander A. Pasquinzo, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 166

152 N.W.2d 166

7 Mich.App. 519

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred W. THOMAS and Alexander A. Pasquinzo, Defendants-Appellants.

Docket Nos. 13, 221.

Court of Appeals of Michigan, Division No. 1.

Aug. 10, 1967.

Rehearing Denied Sept. 20, 1967.

Leave to Appeal Denied Nov. 24, 1967.

William Murray, Detroit, for Thomas.

Gerald A. McNally, Detroit, for Pasquinzo.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and GILLIS, and HOLBROOK, JJ.

HOLBROOK, Judge.

Four defendants were charged with conspiracy ¹ to commit abortion. ² They were tried in a joint trial in the recorder's court in the city of Detroit. One defendant, Gilbert R. Frank waived jury trial and was tried by the court. The two defendants, Fred W. Thomas and Alexander A. Pasquinzo were tried before a jury and convicted; and defendant Frank was found guilty by the trial judge. The other defendant's case was dismissed by the court. The defendants were sentenced on May 22, 1963. Separate motions were made for a new trial on behalf of each of the defendants. The court, after a hearing, denied the same in an opinion dated August 27, 1963. Defendants Thomas and Pasquinzo appeal and raise several questions for review.

There was no direct testimony introduced indicating that all of the conspirators and coconspirators met together agreeing to conspire for the purpose of committing the crime charged. The people based its case upon the evidence of certain facts, together with legitimate inferences to be drawn therefrom and with circumstances surrounding the various acts by the charged participants to show a common purpose to effect the claimed conspiracy.

It was the theory of the people on the trial that all of the defendants used a code name, that of 'Zack' in identifying women desiring abortions.

The pertinent facts appear to be as follows: the people called as witnesses two policewomen who had assisted the police investigation by posing as pregnant women.

Coconspirator Maxine Luft, the owner and operator of a restaurant, was contacted in the early part of November, 1961, by policewoman Arko who said she desired to be relieved of a pregnancy. Initially Luft tried to contact an abortionist for her and said it would cost $300. Miss Arko was then told to see defendant Pasquinzo, the owner of a drugstore for help. Upon Miss Arko's failure to obtain help from defendant Pasquinzo, policewoman Mahon took over Miss Arko's assignment. Policewoman Mahon then contacted Maxine Luft and asked her help to be relieved of her pregnancy and was told by Luft that drugs and medicine could be tried first, an abortion operation would cost $150. She would have to wait until after the first of the year for an abortionist. It was after being given this information that Miss Mahon was sent by Maxine Luft to defendant Pasquinzo. Defendant Pasquinzo, when Miss Mahon visited him at his drugstore questioned her concerning her pregnancy and her source of contact and acquaintanceship with Maxine Luft. He told her that things were 'hot' and the abortionists he knew were in jail or out of town. He said he did not keep the necessary drugs in the store and he had recently had trouble with the police, and he couldn't do anything for her then. After several conversations at the store and over the telephone, he agreed to get some medicine for her. According to arrangements, the two met at a certain bar one evening. Upon leaving the bar the two went to Pasquinzo's car where he gave Miss Mahon 3 kinds of medicine together with directions for taking the same in exchange for $25. When she told him the medicine did not work, Pasquinzo referred her to defendant Thomas for an abortion and told her not to use her own name but to use the name 'Zack.' He also told her exactly what to say when she would call Dr. Thomas by phone for an appointment and further that if the doctor's wife answered the phone not to say anything. Witness Mahon, after experiencing some difficulty, contacted Dr. Thomas. After several conversations with him, she saw him while he was making his calls one morning and at that time he referred her to defendant Frank to have the abortion performed. Defendant Thomas told her he had already called Frank about her and Frank would be expecting her call. She called defendant Frank by phone, identified herself as Joan Zack and said Dr. Thomas had referred her to him. He replied 'Yes' and asked her for her telephone number and address and when she would come out for an appointment, which he explained would be an examination. Witness Mahon went to Frank's house the same day but when asked to submit to an examination, refused, unless defendant Frank's wife or Dr. Thomas would do it. She also testified that she told defendant Frank that she thought Dr. Thomas was going to do the operation. Defendant Frank told her that Dr. Thomas couldn't do it because he didn't have the special material. This is the same reason Dr. Thomas had given her for sending her to defendant Frank. She had also been told by Dr. Thomas when asked if he would be at defendant Frank's place that he never went out there unless there were complications. While there defendant Frank received a telephone call from defendant Thomas concerning her. She testified that what she heard of the telephone conversation was as follows:

'and Mr. Franks said, 'Are you talkable?' And then he said, 'Funny thing, she is right here now, Doc.' Then he said, 'How are the references?' And there was a pause and he says, 'Well, I'll be darned.' And he said, 'Are you sure it's all right, Doc?' And he says, 'Funny thing, she wouldn't let me examine her. Well, I will give her a cup of coffee and see if I can calm her down.' And then he said, 'Do you want to talk to her?' He said, 'Okay, well, thanks for calling, Doc."

Defendant Frank insisted that without a physical examination there would be no operation. The policewoman refused, left, and did not return. Mr. John Darnell, of the Detroit police department testified that on the morning of January 30, 1962, he followed defendant Frank and others from Frank's residence to the Metropolitan Airport. After arriving, defendant Frank left the others who had accompanied him and went to a place where passengers were arriving and approached two young women. The witness observed defendant Frank back away upon speaking to the first. He then approached the second young woman and heard defendant Frank ask if she was Miss Zack and when she nodded in the affirmative, Frank took her by the arm and they eventually joined the other persons in the dining room.

Jerry B. Holden, a witness for the people, testified in part as follows:

'Q. Where were you employed in January of 1962?

'A. With American Airlines.

'Q. In what capacity?

'A. As a passenger service agent.

'Q. Now were you employed there on January the 30th, 1962?

'A. 1962?

'Q. Yes?

'A. Yes, sir.

'Q. And in your employment there did you have occasion to see anyone who might be in the courtroom today?

'A. I believe I did, yes, sir.

'Q. Would you point that person out?

'A. The gentleman seated over here with the red tie.

'Mr. Wisok: Let the record show that the witness has indicated the defendant Gilbert Frank.

'Q. And how was he brought to your attention?

'A. I was working a flight that had just come in from Chicago approximately around noon that day, and the passengers were coming right beside me through the gate, and I heard a gentleman ask a young lady if she were Mrs. Zack, and I turned around, and she said, 'No.' And she joined another gentleman and they went away; and another young lady came through, and he said 'Are you Mrs. Zack?' And she said, 'Yes.' And they joined and went on up into the terminal. And right after that a gentleman came up and identified himself as a policeman, and he said, 'What did he call her?' And I said, 'Mrs. Zack.' He said, 'All right, remember that."

The Mrs. 'Zack' turned out to be Miss Aiken whose pregnancy was terminated by Frank.

Defendant Frank paid $50 equal to 20% Of the fee to James Stanley a coconspirator for his part in relation to the Miss Aiken abortion. Stanley testified tht he became acquainted with defendant Frank through defendant Thomas.

A witness testified that when she was pregnant in October, 1960, she went to see Dr. Thomas and was referred to defendant Frank for the purpose of having an abortion performed.

A code name of 'Zeferious' was used on one occasion when Dr. Thomas was contacted by phone for an appointment for an abortion performed for $150.

For fixed fees, the defendant Gilbert L. Frank and defendant Dr. Fred W. Thomas, in concert with others, did perform criminal abortions on frequent occasions. At the time defendant Frank was arrested at his home, 2 women were in an abortive condition there and were removed to a hospital.

The appellant Pasquinzo asserts that he did not conspire with anyone to criminally abort women; that in referring anyone for an abortion, he was merely doing a friend a favor and that he was wrongly convicted of conspiracy in this case. However, it was testified that he obtained medicine to induce an abortion and furnished it to at least 3 persons referred to him by Maxine Luft. When referring witness Mahon to Dr. Thomas for an abortion, he told her to use the code name 'Zack.' This name was also used by Miss Aiken who was met by defendant Frank at the airport. Dr. Thomas talked with a person concerning an abortion when that person used the code name 'Zeferious.' He understood the purpose of witness Mahon's telephone call when she said her name was 'Zack' and later discussed the matter with her.

The questions raised by appellants will be discussed in proper order.

1. When the people charge in a case a...