People v. Toney

• Decision Date: 01 June 1961
• Docket Number: Cr. 7272,7330,7329
• Citation: 192 Cal.App.2d 711,13 Cal.Rptr. 756
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Pendleton TONEY, Defendant and Appellant.

Page 756

13 Cal.Rptr. 756

192 Cal.App.2d 711

PEOPLE of the State of California, Plaintiff and Respondent, v. James Pendleton TONEY, Defendant and Appellant.

Cr. 7272, 7329, 7330.

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

June 1, 1961.

Walter L. Gordon, Jr., Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant Toney appeals from three different convictions of abortion. Those appeals are presented upon separate records and briefs pertaining thereto. In each case appellant asserts insufficiency of the evidence and inadequate corroboration of the testimony of the aborted woman. The facts are so similar and the law arguments so closely parallel that we will dispose of the three cases in a single opinion.

Case Cr. No. 7272

Count I of the information charges appellant and his co-defendant Lillian Bruce with conspiracy to commit an abortion (Pen.Code §§ 182, 274); Count II charges said defendants with commission of an abortion upon one Jeannine Friday on October 13, 1959, also alleges a former conviction of appellant of the crime of abortion. Both defendants were convicted upon each count and the charge of former conviction of appellant found to be true.

Appellant's claim of insufficient corroboration of the alleged abortee, Mrs. Friday, proves to be controlling. Neither defendant testified and the evidence consists only of the testimony of Mrs. Friday, Mr. Harry Reid and Police Officer Paul LePage. Reid clearly was an accomplice for he knew that the crime was to be committed and actively cooperated in accomplishing the result. He was an aider and abettor in the commission of the offense and consequently an accomplice within the meaning of § 1111 of the Penal Code. People v. Davis, 43 Cal.2d 661, 672, 276 P.2d 801.

Mrs. Friday testified with convincing detail that defendant Toney, whom she identified on the witness stand, committed an abortion on her. In brief her story was that, believing herself to be pregnant, she informed her friend Mr. Reid, who arranged with defendant Lillian Bruce to take her to a doctor for the commission of that crime. Pursuant to previous arrangement made between Reid and Bruce, Reid on October 13, 1959, drove Mrs. Friday to Sunset Boulevard and La Cienega in Los Angeles where Bruce was awaiting them. Mrs. Friday transferred to the Bruce car, Reid drove away and did not further participate in the events of that day. Bruce took Mrs. Friday to the offices of defendant Toney. Before entering, Friday gave Bruce $400, the agreed price, which was in currency tightly folded in such manner that she recognized it lying on the desk in the doctor's office. Later she glanced at the same spot and it had disappeared. The doctor took her into another room and there committed the abortion, an operation that was described in detail by Mrs. Friday. Upon its completion he told her to relax, that it would take 10 or 15 minutes also that she would have her menstrual period within 24 hours. Soon he said it was all over and she could go home. Mrs. Bruce drove her to her place of residence. Before leaving she asked the doctor if she could call him if anything went wrong; Mrs. Bruce spoke up and said Mrs. Friday could get in touch with her. In about three days Mrs. Friday became quite ill; Reid tried to contact the doctor by telephone, reached Mrs. Bruce and asked her to have the doctor call but he did not do so. To this Reid's testimony added that he later talked to some man who telephoned him, called himself the doctor but gave no name; he said Mrs. Friday's condition was a normal, expected thing. When Reid asked him to come over he refused. Reid never saw Dr. Toney at any time. On the night of the 17th Mrs. Friday was taken to the hospital.

As previously stated, neither Toney nor Bruce testified. The only witness other than Friday and Reid was Police Officer LePage who testified about several conversations with defendant Bruce, but none with Toney. The pertinent portions of those conversations were entertained by the court only as evidence against defendant Bruce. True, LePage talked to her about two of defendant Toney's professional business cards, one of which was found in her purse and the other in her personal telephone directory; he also said she had more than one Toney card in her purse. She asserted that Toney was a friend whom she had known for 9 or 10 years. Asked if she had taken any girls to him to be aborted she said, 'only a few.' Asked about Mrs. Friday she said she recalled a Jean, but not a Friday, that Jean's name was Dier, which name Reid had testified was his own name spelled backward. As stated above these statements were excluded as to appellant.

Although the aborted woman is not an accomplice (1 Cal.Jur.2d § 5, p. 154; People v. Gallardo, 41 Cal.2d 57, 63, 257 P.2d 29; People v. Malone, 82 Cal.App.2d 54, 68, 185 P.2d 870), section 1108, Penal Code, says: 'Upon a trial for procuring or attempting to procure an abortion * * * the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence.' The same principles apply to this type of corroboration as to corroboration of the testimony of an accomplice required by Penal Code, § 1111 (People v. MacEwing, 45 Cal.2d 218, 224, 288 P.2d 257). It is also established that the corroboration need not go to the corpus delicti, the abortion,--only to defendant's connection with the same. People v. Clemons, 182 Cal.App.2d 808, 815, 6 Cal.Rptr. 727; People v. Ames, 151 Cal.App.2d 714, 728, 321 P.2d 1111. The necessary corroboration may be furnished by an accomplice. 'Kloster was doubtless an accomplice but that did not disqualify him as a corroborating witness. People v. Gallardo, supra, 41 Cal.2d 57, 63, 257 P.2d 29; People v. Malone, supra, 84 Cal.App.2d 54, 68, 185 P.2d 870.' People v. Bowlby, 135 Cal.App.2d 519, 527, 287 P.2d 547, 553, 53 A.L.R.2d 1147. The corroboration must 'relate to some act or fact which is an element of the offense' and 'must create more than a suspicion' though it 'may be sufficient even though slight' (People v. Gallardo, supra, 41 Cal.2d at page 63, 257 P.2d at page 33). However, '[i]n our opinion both statutes must be construed to mean that corroboration is not adequate if it requires aid from the testimony of the person to be corroborated in order to connect the defendant with the commission of the offense charged.' People v. MacEwing, supra, 45 Cal.2d 218, 225, 288 P.2d 257, 261.

Applying these principles to the facts at bar we are forced to conclude that Mrs. Friday's testimony is not adequately corroborated. There is no testimony except hers tending to prove that the offices in which the abortion was effected were appellant's offices. True, the photograph marked Exhibit 1 does plainly designate the building shown therein as the office of 'J P Toney M D Medicine Surgery,' and though it was introduced in connection with the testimony of Mrs. Friday it doubtless constitutes independent evidence of the fact that defendant did have his office therein, but it still remains true that no one but Mrs. Friday testified directly or inferentially that she was in that particular building. She is the only witness who saw appellant or knows that she talked to him. The telephone call in which some man told Reid that he was 'the doctor' proves nothing, for there is no direct or indirect proof that appellant was talking. Certainly it would require direction from the abortee's testimony in order to connect appellant with the crime, for Reid had no personal knowledge of the abortion or who performed it. The possession of appellant's professional cards by Mr. Bruce, divorced from the conversations concerning same which were received only against Bruce, could do no more than raise a suspicion and that testimony would necessarily require direction from the abortee's testimony before it could supply anything in the way of connecting appellant with the crime. Appellant's failure to testify could not fill the hiatus in the proof. People v. Ashley, 42 Cal.2d 246, 268, 267 P.2d 271.

The evidence is insufficient to sustain the verdict upon either count.

The judgment in case Cr. No. 7272 is reversed.

Case Cr. No. 7329

Viewed in the light of the principles discussed in connection with case No. 7272, this appeal appears to be clearly frivolous.

Defendant was convicted of performing an abortion upon Barbara Pol on December 12, 1959; a charge of previous convicion of a like offense was admitted. Defendant did not testify and the only witnesses were Mrs. Pol and Ted Lyons.

Mrs. Pol testified that she became concerned in October, 1959, about lateness of her menstrual period and consulted Dr. Pruess in Santa Barbara, the city in which she lived. He pronounced her pregnant. She discussed the matter with Ted Lyons and they decided to terminate the pregnancy. Later he gave her a slip of paper bearing appellant's name, office address and telephone number. She called that number on the telephone and asked for Dr. Toney; a man who had answered her call said he was Dr. Toney. She gave him her name and said she would like to make an appointment with him; that she had been late on her period and asked if she could come some time early Saturday morning. He told her that Saturday morning at 10:00 would be fine. Lyons drove her to Los Angeles on Friday, December 11th, and to appellant's office. He introduced her to appellant. She recognized his voice as the one which had talked to her on the telephone. On the next day, Saturday, Lyons took her again to appellant's office. They entered together and sat down. Defendant told them it would be about ten minutes and for her to go into the other room, which she did. Lyons remained where he was. After ten more minutes defendant showed Mrs. Pol into his operating room. She...