People v. Weiss

• Decision Date: 27 June 1958
• Docket Number: Cr. 6208
• Citation: 327 P.2d 527,50 Cal.2d 535
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James A. WEISS, Fred Lee Johnson, Gerald Lee Hubbard and Vivian Hubbard, Defendants and Appellants.
• Court: California Supreme Court

Page 527

327 P.2d 527

50 Cal.2d 535

The PEOPLE of the State of California, Plaintiff and Respondent, v. James A. WEISS, Fred Lee Johnson, Gerald Lee Hubbard and Vivian Hubbard, Defendants and Appellants.

Cr. 6208.

Supreme Court of California, In Bank.

June 27, 1958.

Harold J. Ackerman, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond Momboisse and John S. McInerny, Deputy Attys. Gen., for respondent.

SCHAUER, Justice.

Defendants James A. Weiss, Fred Lee Johnson, Addie Estelle Simmons, Gerald Lee Hubbard, and Vivian Hubbard were charged with (Count I) conspiracy to commit abortion committed continuously from March 29, 1955, through February 3, 1956, and (Counts II through VII) a series of six criminal abortions committed during that period. Defendants were tried before a jury, which found them guilty of all counts except as follows: Defendant Weiss was found not guilty as to Counts II and III; both the Hubbards and Simmons were found not guilty as to Count II. Each defendant moved for a new trial. The motions were denied, except as to defendant Simmons, who withdrew her motion for new trial and subsequently abandoned her appeal. Before us are the appeals of the remaining defendants from the ensuing judgments of conviction and from the order denying a new trial.

Defendants (collectively or individually, as appropriate in the context) argue that (1) the trial court erroneously admitted evidence obtained by illegal search and seizure; (2) the trial court erred in permitting the removal from the court room, before the taking of evidence began, of exemplars of the handwriting of defendants Hubbard for the purpose of permitting examination of them by a prosecution expert; (3) the trial court erroneously admitted hearsay testimony of a telephone conversation between one of the abortees and an unidentified person who represented himself to be an attorney of defendants; (4) the trial court erroneously restricted the cross-examination of an accomplice witness; (5) the prosecuting attorney erred to defendant's prejudice in his argument to the jury; (6) defendants were denied their right to a speedy trial (U.S.Const. amendment VI; Cal.Const. art. I, § 13; Pen.Code, § 686, par. 1); (7) the trial court erroneously restricted defense counsel's examination of a defense witness offered to prove an alibi of one of defendants; (8) the trial court erroneously permitted the making, at the direction of the prosecuting attorney, and the introduction, on cross-examination of a defendant, of an exemplar of that defendant's handwriting; (9) the evidence is insufficient as a matter of law to sustain the conviction of defendant Gerald Lee Hubbard; (10) the trial court erroneously instructed the jury that one who becomes a conspirator after the formation of the conspiracy is liable for crimes committed by his co-conspirators before he entered the conspiracy. For the reasons hereinafter stated, we have concluded that insofar as the matters complained of were error, the error was not prejudicial (Cal.Const. art. VI, § 4 1/2).

Evidence which Defendants Claim was Illegally Obtained. Defendants Johnson, Simmons, and Weiss were arrested at the premises where the abortions were performed, 5460 The Toledo, Long Beach, at about 7:55 p. m. on February 3, 1956. Defendant Gerald Lee Hubbard was arrested at the Hubbard home, 6701 Sunnybare Avenue, Canoga Park, at approximately 11:10 p. m. on the same night. On The Toledo premises were found an operating table and appurtenant equipment (displayed to the jury but not formally received in evidence); photographs of the premises were taken and received in evidence; a sterilizer, rubber gloves, forceps and other surgical equipment, surgical gowns and masks, and various papers were taken from The Toledo premises and received in evidence. Papers taken from the Sunnybare premises were received in evidence. Defendants object to the introduction of this evidence on the ground that it was obtained by illegal search and seizure. The People introduced much evidence, outside the presence of the jury, which shows that the arresting officers had reasonable grounds to enter and search the premises and arrest defendants without a warrant. Such evidence is as follows:

In the latter part of 1953 or the first part of 1954 Lieutenant Zander, police officer, investigated the activities of Vivian Hubbard, her brother, defendant Weiss, and her son, defendant Johnson. He observed Vivian taking women to 13605 Gault Street (not the premises involved in the present prosecution) and on two occasions observed defendant Gerald Lee Hubbard accompanying Vivian when she was taking women from those premises. From women who had been aborted on the premises Zander learned 'that a woman who believed herself to be pregnant and desired to terminate her pregnancy would receive from any of several sources the telephone number Albany 2309 and the name Vivian, and instructions if she were to call that number and ask for Vivian that she could make arrangements to have an abortion performed; * * * that the woman who identified herself as Vivian would make arrangements satisfactory with the pregnant woman for her to go to a parking lot at Hody's Drive-in * * * at a designated time and that they would be instructed to have with them an amount of cash that would be set forth in this conversation; and that they would be instructed that they would be met there by a woman in a black Lincoln Capri and that they would be taken then to a doctor who would perform the abortion and would be subsequently returned to the parking lot'; that pursuant to these arrangements the women were taken to the Gault Street address, where they paid Vivian, disrobed, put on a white gown, and were assisted by Vivian onto an operating table and 'instructed by her in the use of an anesthetic device that they described as a cannister with a face mask, * * * and that they would then notice a man dressed in a white mask with a cap * * * and wearing a white gown enter the room, and that on occasion they would see or hear the metallic clink of instruments, fell some instruments being inserted in their private parts, feel certain sensations of pain or pulling or cramping * * *; that after some minutes on this table they would awaken from a semi-consciousness * * * and following this procedure they would be returned by Vivian in this car to the parking lot where they had been initially picked up; and that in each instance following this procedure they would resume their normal menstrual periods.'

Lieutenant Zander further learned that during the latter part of 1953 some aborted women were taken to the home of defendant Johnson and there cared for by Johnson and his wife. In May, 1954, Lieutenant Zander had arrested defendants Vivian, Weiss, and Johnson, and Johnson's wife, and another person. Prosecution of these persons on the charges then laid resulted in disagreement of the jury; apparently prosecution on those charges of those who are defendants in this action was not carried further.

In January, 1955, Lieutenant Zander investigated an address in Seal Beach where the telephone was listed under a pseudonym of defendant Weiss. The officer had received information that women were being taken to that address for the purpose of having abortions performed, but he did not 'actually see any of the operation at that address.'

In July, 1955, Lieutenant Zander talked with Mr. Meade of the State Medical Board. Mr. Meade stated that he had received a report that Evelyn Rogers (sometimes referred to in the transcript as 'Rodgers') had been hospitalized and that the doctor who treated her 'reported it as a criminally induced abortion.' Mrs. Rogers told Mr. Meade and a police officer that she 'believed herself pregnant, wanted to terminate the pregnancy, had received from a source that she declined to name a Diamond telephone number and the name Vivian no that she had received a call from a woman that indentified herself as Vivian, and that during the conversation she was given a Diamond telephone number to make subsequent calls to, and that she had had a conversation with this person in which she discussed the term of her pregnancy, her desire to terminate it, and the matter of what the price would be for the abortion, and that she was instructed to go to the Clock Cafe * * * on a certain day'; Mrs. Rogers went to the appointed place at the designated time and was taken to a house 'where she had had certain instrumentation performed upon her after a payment of a sum of money'; the man who performed the operation wore a white cap, a mask, and a long white gown; 'an anesthetic was used * * * a breathing device had been strapped to her wrist.'

Lieutenant Zander learned from Officer Bates, to whom a Mr. Jaderquist had reported, that Mrs. Jaderquist was pregnant and planned to have an abortion; that after having talked to a Vivian on the telephone Mrs. Jaderquist arranged to go to the Long Beach Municipal Airport 'where she would be met by a woman who would take her to the doctor.' Thereafter, by listening to a telephone conversation between Jaderquist and Officer Bates, Lieutenant Zander learned that Mrs. Jaderquist had kept her appointment, was driven by a described route from the airport to a house with the number '5460' on it, had been taken to an upstairs bedroom and given an anesthetic and 'lost partial consciousness.' Investigation by the police officers disclosed only one house in the described neighborhood with the number '5460' on it, that is, 5460 The Toledo.

Thereafter in front of 5460 The Toledo Lieutenant Zander saw a parked automobile with a license number which, investigation disclosed, was registered in the name of Harry M. Umann, who, the officers knew, was the attorney of Vivian, Weiss, and Johnson. Beginning January 16, 1956, Lieutenant Zander placed 5460 The Toledo under the observation of himself and...