Bunker v. Superior Court

SHINN, P. J.

Petitioner seeks by writ of prohibition to prevent his prosecution under an indictment charging him and three others with the offenses of abortion and murder. The decedent will be referred to as Miss B. The trial court denied defendants’ motion under 995, Penal Code to quash the indictment for lack of any evidence to support it. The same ground of attack is urged in the present proceeding. We are convinced that it has merit.

The transcript of the testimony given before the grand jury contains evidence of the following facts: Miss B was an unmarried 17-year-old high school student. For some time prior to May, 1949, her health had not been normal. On that day, she was examined by a gynecologist and found to be four and a half or five months pregnant. On May 20th, her parents took her to the offices of Dr. William Eisoff, who arranged by telephone for an abortion to be performed. He stated that he would call them later in the day to give them

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the time and place for the operation. About 6 o’clock in the evening, the parents received a phone call from someone they believed to be Dr. Eisoff, telling them to take their daughter to 4230 South Figueroa Street in Los Angeles at 7:30 the following morning, that the price would be $500, and that they were to ask for Mary and say they were Dr. Arons ’ patients. On the morning of May 21, 1949, the three went to the appointed address, which was the medical offices of petitioner Dr. Frank S. Bunker. They were there met by Dr. Leonard Arons and Mary Jensen, a nurse employed by Dr. Bunker. Dr. Arons examined the girl and instructed Mary Jensen to feel her stomach. He said, “Oh, nothing to it. That’s just liquid.” Then, taking the parents into another room, in private conversation, Dr. Arons said they would “pack” the patient, and that there was nothing to it. The father paid Arons $500 in cash. The parents then went home, after Dr. Arons promised to call them about 11 a.m., leaving their daughter in the care of Dr. Arons. At 9 :45 a.m. Dr. Theodore Bluechel, an experienced surgeon, received a phone call from Mary Jensen, who told him that Dr. Arons, who was working in Dr. Bunker’s office, had a surgical case of acute appendicitis, and wanted Dr. Bluechel to operate at once, at the South Hoover Hospital. At 10 a.m. the parents received a phone call from Mary, informing them that “the doctor decided we needed surgery,” and that their daughter was going to be transferred to the South Hoover Hospital “as an acute appendectomy.” The parents returned to Dr. Bunker’s office, where they signed a consent to surgery and a statement releasing Dr. Bunker from liability. Miss B was removed to the hospital in an ambulance. She was delirious and moaning at the time. Dr. Bluechel arrived at the hospital at 11 a.m. He met Dr. Arons, who told him the patient had acute appendicitis, possibly a ruptured appendix, and that he, Dr. Arons, had just examined her at Dr. Bunker’s office that morning. Dr. Bluechel operated at once, in the presence of Dr. Arons. It was discovered that an abortion had been attempted and that severe internal injuries had been incurred by the patient. Dr. Bluechel asked Dr. Arons if he knew anything about it, and “he said that an abortion had been attempted.” Dr. Bluechel repaired the damage so far as possible, but, as a result of peritonitis due to her injuries, Miss B died on May 27th. There was medical testimony that an abortion was not necessary to save her life.