People v. Davis

DORAN, J.

Appellant and Thela Smith were charged by information with seven counts of abortion (Pen. Code, § 274). Following a jury trial defendants were adjudged guilty of all seven counts. Defendant Davis appeals from the judgment and from the order denying a new trial.

It is contended on appeal that,

I. “The trial court committed prejudicial error in admitting evidence of the declarations or acts of the alleged co-conspirators against appellant in the absence of independent proof of the existence of a conspiracy.”

II. That, “The trial court erred in failing to instruct the jury that appellant was on trial for the crime charged in the information, to wit violation of Penal Code section 274 and for no other crime, and that the sole purpose in per

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mitting the .testimony of certain witnesses relative to proof of a conspiracy was for the limited purpose of determining whether the offense for which they were being tried was committed pursuant to the common design of such conspiracy.”

III. That, “The evidence is insufficient to support the conviction of appellant in that there is no evidence corroborating the testimony of the abortee-witnesses which tends to connect the defendant with the commission of the crime pursuant to Section 1108 of the Penal Code.”

Briefly, it may be noted, that the seven so-called abortees testified as to the operation and the arrangements leading up to the incident. These arrangements were made with codefendant Thela Smith. When the “abortees” arrived at the house pursuant to appointment they were prepared for the operation by Thela Smith. The description of what occurred, as testified to by the seven “abortees,” was substantially the same. All were blindfolded before the doctor entered the room.

As set forth in respondent’s brief and confirmed by the record, “Appellant testified, among other things, that he was an osteopathic physician, licensed in California as a drugless practitioner since 1927, and that he retired from active practice in 1947; that he saw Carol Berry (Count One) at his house one afternoon in early February, 1954; that she wanted information as to an abortion, that he was not able to help her out and that he had not seen her prior to that time; that early in February, Violet Thompson (Count Six) and her husband came to his house, that they told appellant she was pregnant and wanted an abortion, and asked if appellant could do something about it, that appellant suggested she go to term and have the baby and that he said he could not do anything about assisting them in obtaining an abortion; that George Krainbrink (Count Seven) came to appellant’s house one afternoon in late January or early February stating that he had gotten a girl into trouble and wanted someone to help them out, that appellant said he was sorry but he could not do anything about it and suggested that Mr. Krainbrink and the girl get married, that he never saw Mrs. Rose Marie Nipp before the preliminary hearing; that to the best of his recollection he never saw Martha Lemmonson (Count Four) before the commencement of this action; that he saw Mrs. McGinnis (Hamby), (Count Two), early in February when he went to her home in El Monte