People v. Von Mullendorf

• Citation: 110 Cal.App.2d 286,242 P.2d 403
• Decision Date: 07 April 1952
• Docket Number: Cr. 4706
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. VON MULLENDORF.

Page 403

242 P.2d 403

110 Cal.App.2d 286

PEOPLE v. VON MULLENDORF.

Cr. 4706.

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

April 7, 1952.

Allan M. Moore, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant was found guilty by a jury of the crime of abortion on who counts. He appeals from the ensuing judgment and the order denying his motion for a new trial.

On January 20, 1951, the complaining witness, Joan, accompanied by one Jacobson, visited the office of Dr. Clark for the purpose of having a physical examination. The doctor determined she was three months pregnant. Thereafter Jacobson had a conversation with defendant explaining that the young lady was pregnant. An appointment was made for him to bring her to defendant's office on Hollywood Boulevard on Saturday morning, February 10th. Joan borrowed $240 for an abortion from her friend, Janice, and together they delivered it in a brown paper bag to Jacobson at a drive-in on the preceding Friday evening; it was in denominations of one and five dollar bills, as requested by him. Saturday morning Jacobson took Joan to defendant's office. He examined her and told her she was two and a half months pregnant. Defendant asked her, 'Do you want the abortion'? She said 'Yes.' He then said, 'Well, it will have to be done today or not later than Monday. It cant't wait.' Defendant told her to 'come back to the office about 12:00' and not to eat anything in the meantime. She left defendant's office with Jacobson who still had the paper bag with the money in it. Jacobson then went to defendant's office alone and paid him the money. A few minutes after 12:00 o'clock Jacobson returned Joan to defendant's office. He told her to disrobe and lie on the table; he gave her an injection which resulted in her losing consciousness. However, she regained consciousness and felt pain and knew that something was going on in her plevic region. After it was over Jacobson asked defendant how it went and he replied 'Fine, fine. But it was an awful mess. She is a healthy girl.'

On the following Monday Joan was in bed at a friend's apartment in Pasadena. Because she was suffering pain Janice called defendant. Upon his arrival he took Joan's temperature, felt her pulse, and palpated her stomach in various parts. On learning that it pained her he said, in the presence of Janice, 'he hadn't got it all the first time, that he would have to operate again.' He asked Janice whether there was a place to sterilize his instruments. After some conversation and defendant's refusal to take the patient to his own office, he agreed to convey her to a motel 'if it was one with a kitchenette where he could sterilize.' Janice located a motel and Joan was removed to it by defendant. There, defendant required a rubber sheet and something in which to sterilize the instruments. After spreading the rubber sheeting on the bed he had Joan undress and lie down for further treatment. She saw an 18 inch long chromium scissors-like instrument. From his anaesthetic she became unconscious. When she awoke Jacobson was there the defendant was closing his black bag. Blood was on a few on the things in the room. The next morning Janice and Jacobson removed Joan to his apartment in Hollywood. When they left the motel they took a little brown paper bag that had the contents taken from Joan and disposed of it in a trash can on the way to Hollywood. Jacobson testified defendant told him to dispose of the contents of this bag in which he saw evidence of human flesh.

Joan testified that her purpose in going to defendant's office on the first occasion was to have an abortion; that she had taken no medication prior to that time for the purpose of causing an abortion, and that she had not suffered any cramps.

Joan was removed to the County Hospital where an examination disclosed an incomplete abortion and pelvic peritonitis. There was also evidence of instrumentation on the cervix.

Defendant's office record book did not contain the names of either Joan, Jacobson, or Janice on February 10th, but it did reveal the names of other patients treated on that date. Defendant admitted requesting a motel with a kitchenette where he could have hot water and sterilize, and he also admitted taking Joan and Janice to the motel.

The first contention of defendant is that 'The verdict is contrary to and unsupported by the evidence, and is contrary to law.' The simple answer to this contention is found in the foregoing resume of the evidence. It demonstrates an abundance of proof to support the verdict. Defendant's denial of certain testimony on behalf of the People only served to create a conflict in the evidence which the jury resolved against him. Such determination is of course binding on this court.

It is argued that no intent is shown on the part of defendant to commit an abortion on Joan. It is true that intent is an element of this offense. People v. Browning, 132 Cal.App. 136, 147, 22 P.2d 784. Criminal intent, however, is seldom susceptible of direct proof. People v. Murphy, 60 Cal.App.2d 762, 770, 141 P.2d 755, hence the necessity of inferring it from the circumstances connected with the offense. Penal Code, sec. 21. Defendant testified that after examining...