People v. Wilkes

• Decision Date: 08 February 1960
• Docket Number: Cr. 6775
• Citation: 2 Cal.Rptr. 594,177 Cal.App.2d 691
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Weyman Otis WILKES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 594

2 Cal.Rptr. 594

177 Cal.App.2d 691

The PEOPLE of the State of California, Plaintiff and Respondent, v. Weyman Otis WILKES, Defendant and Appellant.

Cr. 6775.

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

Feb. 8, 1960.

Hearing Denied March 30, 1960.

Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of three counts of violation of section 274 ¹ of the Penal Code (abortion). He has appealed from the judgment.

It was initially alleged that defendant violated Penal Code, §§ 274 and 664 (attempted abortion) by supplying and administering a 'vaginal pack' to one Hilda Mary Muise. The district attorney made a motion to amend the information by interlineation by substituting the words 'a substance' in place of 'vaginal pack.' The motion was denied. The district attorney then moved to dismiss. This motion was granted November 12, 1958.

A new information was filed on December 19, 1958, in which defendant was charged with three counts of abortion. ² The acts were alleged to have occurred on April 11, 12 and 19, 1958, respectively, and involved the supply and administration of 'a substance' to the same female with the intent to procure a miscarriage. A jury found defendant guilty on all three counts. Probation was denied and defendant was sentenced to the state prison on each count; the sentences, however, were ordered to run concurrently. It is from this judgment that defendant has appealed.

In March, 1958, Hilda Mary Muise discovered that she was pregnant. She advised one Jerry Benson of her condition. They decided she would get an abortion. During the early part of April Benson received a telephone call at his place of employment from a person with a male voice. Thereupon Benson went to his bank where he withdrew $700. On April 11th, at approximately 6:00 p. m., he returned to Mrs. Muise's home, at 642 Date Street, in Pomona, to keep an appointment with the man with whom he had talked on the telephone. Benson had $500 in cash with him. A short time thereafter defendant arrived carrying a black bag. He and Mrs. Muise went into her bedroom. There, with the aid of a vaginal speculum, defendant inserted a pack. He told her that she would get a little choking feeling in her throat and her throat would become dry; also, that she would start getting cramps more and more until eventually she would lose her pregnancy. Except for her pregnancy, Mrs. Muise was in good health.

Benson placed $500 on the kitchen table while defendant and Mrs. Muise were in the bedroom. Defendant came into the kitchen, picked up the money and counted it, and then put it in his pocket. Benson asked defendant what he should do if Mrs. Muise developed some kind of trouble or began to hemorrhage. Defendant told him to call a doctor ³ or take her to a hospital but not to mention that she had had an abortion. In response to Benson's inquiry, defendant informed him that the operation was guaranteed.

Defendant returned to the Muise home the next evening, April 12th. She told him nothing had happened. Defendant then indicated he would insert another 'packing.' They went into the bedroom where the same procedure as the night before was followed by defendant. He told her it should work and he had never known it not to work. Upon one of the occasions Mrs. Muise recalled seeing the packing which she described as being long and narrow. Defendant did not tell her what was in the packing but merely stated it would be like a jelly substance, brownish in color. She noticed, following these treatments, that she was passing a substance 'like brown jelly.' On all the occasions that defendant inserted the packing Mrs. Muise could feel the object in her private parts.

On April 15th, defendant came by the Muise home about 1:00 p. m. She informed defendant that nothing had happened. Defendant told her and Benson that he had sent to New York for a stronger solution, and he would see them when he received it.

On Saturday morning, April 19th, defendant again called on Mrs. Muise. Upon being informed that nothing had happened, defendant again went through the same packing process as upon the two previous occasions. Before defendant left, Mrs. Muise got a choking feeling such as defendant had told her she would get. He mentioned that this time it 'should work,' and that 'it' was guaranteed. He also instructed her and Benson as to what to do in the event Mrs. Muise hemorrhaged a lot. The next day she passed a fetus. On May 4, Dr. Rebhun was called. He found her to be pale and weak and that she appeared to have lost a great deal of blood. She was immediately taken to the hospital where she was operated on a few hours later by Dr. Naujokaitis, who was a specialist in obstetrics and gynecology. It was his opinion that the pregnancy had been terminated a couple of weeks prior to his operation but the miscarriage had been incomplete.

Defendant testified in his own behalf. He stated that he had been a Doctor of Chiropractic for eleven years with offices in San Gabriel and Pomona, and that he had delivered babies in connection with his work. Defendant acknowledged that he had treated Mrs. Muise on the dates heretofore mentioned. He testified that on his initial call she told him she had taken some quinine capsules because she wanted to kill herself and that she had placed a catheter in her vagina or uterus. Defendant said he thought she might be aborting so he made an examination, using the speculum to examine her cervix. He found considerable inflammation so he made a rosebud pack and placed it against the cervix, removed the speculum, and put her back in bed. He denied that anything he did was with the intent or for the purpose of producing an abortion. He said the treatment he gave Mrs. Muise was necessary to preserve her life. He denied receiving any money from either Benson or Mrs. Muise.

Defendant admitted that when he was arrested by Officer Whitehead on July 24, 1958, the officer asked him whether he knew a Hilda Mary Muise, and he had told the officer that he did not; also that the officer asked him whether he had treated a patient on Date Street, and he told the officer that he had not. Defendant, however, testified that he had billed Mrs. Muise for his services at the 642 Date Street address some time prior to the time he told Officer Whitehead that he had never been to Date Street. He explained that the reason he told the officer he had not gone to Date Street was that he was confused about the address. Defendant admitted he told the officer that he did not know Jerry Benson.

Defendant moved to set aside the information on the ground that he had been denied a speedy trial and that the dismissal of the prior information was a bar to further proceedings in this case. His motion was denied. ⁴

At the outset, defendant argues that the dismissal of the first information on November 12, 1958, was res judicata and that the trial that started in February, 1959, resulting in the judgment from which this appeal is taken violated his 'constitutional guarantee of a speedy trial within 60 days.' Defendant relies on a number of out-of-state cases. His argument, however, is effectively answered by Penal Code, § 1387 and the decisions of our courts. The cited code section provides: 'An order for the dismissal of the action * * * is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.' In commenting on this statutory provision the court, in People v. Vacca, 132 Cal.App.2d 8, at page 9, 281 P.2d 315, at page 136, stated: 'Under this section, while the accused is protected from having criminal charges pending against him an undue length of time (and receive such protection in this case by having the information dismissed), such dismissal does not bar subsequent prosecution for the same offense, when the subsequent charge is a felony and is filed within the period of the statute of limitations.' (Citations.) Here the offenses charged are felonies and the statute of limitations for abortion is three years. Pen.Code, § 800. In People v. Ferrera, 149 Cal.App.2d 850, at page 852, 309 P.2d 533, at page 535, the court held, that the order granting the motion to dismiss the first information was not res judicata, and that no constitutional right of the defendant was invaded by prosecution on a second information. See also People v. Cochran, 162 Cal.App.2d 733, 736, 328 P.2d 532.

With respect to the 60-day period for bringing a case to trial (Pen.Code, § 1382, subd. 2), the court stated in People v. Pierson, 149 Cal.App.2d 151, 159, 307 P.2d 994, 999: 'It seems to be the rule that the 60-day period is reinstated not only by a mistrial [citation], but by the filing of a new or amended pleading, whether or not a new or different charge is involved.' (Citations.)

Since the order dismissing the first information was not res judicata (People v. Ferrera, supra), it follows that there is no foundation for defendant's further argument that the jurisdiction of the court was exhausted by such dismissal.

Defendant filed a demurrer to the information on the ground that 'the information charged the same offense twice.' The court overruled his demurrer. The information charged defendant with three separate counts of administering 'a substance' to Mrs. Muise. Each count was alleged to have involved the administration of 'a substance' on different days, i. e., April 11, 12, and 19, 1958. He argues that in each count the act was the same; that it involved the same pregnancy, and that it was a splitting of the alleged offense into three parts. He therefore concludes that the demurrer to the information should have been sustained. In making this argument defendant misconceives the real basis of the offense. The gist of the crime is not the actual consummation of an abortion as such but rather...