People v. VAN NORT STUART

BRAY, J.

Defendant appeals from a judgment of conviction of abortion after jury verdict and from the order denying new trial.

Question Presented

1. Was cross-examination of defendant as to other abortions by means of pessaries proper?

2. Alleged error in instruction to disregard arguments and statements of counsel.

3. Alleged misconduct of district attorney.

Facts

As no contention is made that the evidence does not support the verdict the evidence will not be detailed in full. The prosecuting witness, Pat, a 21 year old burlesque entertainer, testified that she went to the office of defendant (a chiropractor) and told him that she was pregnant and wanted to get rid of it. He ministered to her but performed no actual operation. She returned the next day and he inserted air into her womb to induce the abortion. This resulted in what was diagnosed at the hospital to which she later went, as an incomplete abortion. She paid defendant $90 for the operation.

One Lois testified to defendant performing a similar operation to abort her, after on two different occasions fitting her with a pessary which did not accomplish results.

Defendant denied attempting an abortion on Pat, testifying that she came to him to be fitted with a “permanent dia

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phram”—a pessary. On examining her for a fitting he discovered that she was pregnant and refused to proceed further. Defendant likewise denied attempting to abort Lois, or knowing that she was pregnant. He did fit her with a permanent diaphram and also treated her for ovaritis with an ultrasonic device.

1.

Cross-examination.

As above stated, defendant gave as a reason for not treating Pat the fact that he found that she was pregnant. On cross-examination defendant said that he would not fit a woman who was pregnant with a pessary because it might cause a miscarriage. The prosecutor then asked defendant if he had not fitted five named women with pessaries when they were pregnant. As to one, defendant admitted fitting her but denied that she was pregnant. As to three of the others, he could not tell whether he had fitted them, without looking at his records. As to one, the question was not answered, being lost in argument of counsel.