People v. Wellman, Docket No. 1163

• Decision Date: 25 April 1967
• Docket Number: No. 3,Docket No. 1163,3
• Citation: 6 Mich.App. 573,149 N.W.2d 908
• Parties: The PEOPLE of the State of Michigan, Plaintiff-appellee, v. Dr. W. J. WELLMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 908

149 N.W.2d 908

6 Mich.App. 573

The PEOPLE of the State of Michigan, Plaintiff-appellee, v. Dr. W. J. WELLMAN, Defendant-Appellant.

Docket No. 1163.

Court of Appeals of Michigan, Division No. 3.

April 25, 1967.

Leave to Appeal Denied July 13, 1967.

Harold S. Sawyer, and Wallson G. Knack, Warner, Norcross & Judd, Grand Rapids, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.

Before FITZGERALD, P. J., and BURNS and QUINN, JJ.

BURNS, Judge.

The defendant, an osteopathic physician and surgeon who specialized in treating problems relating to obesity, was found guilty by the trial judge, sitting without a jury, of conspiracy to commit an abortion. ¹

One of the defendant's patients, Georgette VanderBos, who was not married, told him that she was pregnant. She did not wish to raise the child as her own, and she did not wish to subject the child to a life through adoption. The patient further informed the defendant that she would kill herself before she would have the baby and had, therefore, arranged for an illegal abortion in the city of Grand Rapids.

The defendant advised her that the type of abortion (paste type) which she had planned was too dangerous and that he would try to find a doctor who would perform an abortion. Whether the abortion contemplated would be a legal therapeutic abortion or an illegal D and C (dilation and curettement) is disputed on the record.

The doctor explained his decision to render assistance as follows:

'Well, she said, 'You certainly aren't offering me much help. Here you have advised me against a plan of action that would terminate my pregnancy. You offer nothing in--as an alternative. You are of absolutely no help.' Well, at this time I made a judgment. Here I was faced with a woman who was distraught, upset to the point where she'd go to a backdoor abortionist. She would threaten suicide as an alternative to abortion. I felt--and here I made my biggest mistake in evaluating the patient--I felt here was a woman that was possibly deserving of every bit of consideration and attention the medical profession could offer her. * * *

'I felt the woman might well qualify and deserve a therapeutic abortion. Here we are faced with a problem where some doctors would resist performing or recommending the performance of a therapeutic abortion on grounds of mental health, to the very end feeling that because of either moral or religious conviction the patient's life would be sacrificed before this would be done, or before they would recommend that it would be done. I knew of no one in Grand Rapids that I might refer the woman to, a licensed physician who would be most sympathetic with her problem and go to possibly every length to get the benefit of good medical treatment for her. However, historically it is reputed in Detroit that there have been doctors that would go to every length to see that the individual was given every benefit of doubt in treatment of this type case.

'I knew of no doctors in Detroit that I could send the woman to. However, my practice has been rather limited and I have had little contact with other physicians particularly in Detroit. However, I did know a business man in Detroit Whom I felt would be in a position to come up with the name of a doctor that this woman could consult who would be most apt to be sympathetic with her problem and go to every length to recommend treatment for her.'

The business man referred to above was Dave Paschall, a tailor in Detroit. The defendant telephoned Paschall and told him that he disapproved of the operation which Mrs. VanderBos had planned on obtaining from an untrained person and that he had told her that a D and C (abortion by means of dilation and curettement) was the only acceptable method in legitimate practice. The doctor said, 'I would like to refer her to a physician who would be apt to be sympathetic to her problem.' Paschall replied that he would inquire and see if he could find the name and phone number of a physician in the area. Later that same day Wellman called again, and when Paschall informed him that he had not located anybody, the doctor said that he would let Mrs. VanderBos call in the future; nevertheless, three days later, Wellman called a third time to inquire as to Paschall's progress.

After Mrs. VanderBos had talked to Paschall she again consulted the defendant and testified as to that consultation:

'I told him--I told Dr. Wellman that Dave called me back, Dave told me he couldn't find what Dr. Wellman want for me; the only kind he could find was a paste, chemical type, that those are the type--that doctor was out of town so he couldn't give it to me. So that Dave wanted me to ask Dr. Wellman if he thought it would be all right for me to have the paste type of abortion. So, Dr. Wellman asked me how much he was going to charge me. I told him $450 for the paste type or $500 for the type that you want me to have. But he--that's one thing that Dave couldn't find. Dr. Wellman told me it was way too much money, that I shouldn't have to pay that much money, to tell Dave that he shouldn't charge me that much. And he told me if that's only kind he can find, you tell Dave that I don't want you to have the paste type; I want him to find you a good doctor who give you the therapeutic D and C abortion. So I told him fine; we call back Dave. So I went home and I called Dave again and I told him what Dr. Wellman say. And Dave say, 'Well, I'm sorry but I just can't find'--'

Thereafter, 3 illegal attempts were made to terminate the pregnancy, and finally approximately 6 months after the last abortion attempt, a Grand Rapids physician removed a mummified dry fetus which was protruding through the cervix and admitted Mrs. VanderBos to a hospital where a D and C was performed.

The defendant appeals to this Court claiming that the evidence does not prove beyond a reasonable doubt that the accused was guilty of conspiracy.

The gist of the offense of conspiracy is an agreement to accomplish a violation of law. People v. Smith (1941), 296 Mich. 176, 295 N.W. 605. To establish a conspiracy to commit abortion would require evidence indicating some agreement, understanding, plan, design or scheme to commit acts...