Loser v. Superior Court

DOOLING, J.

Petitioner herein is joined as a defendant in the same indictment considered in

Stern

v.

Superior Court, ante,

p. 9 [177 P.2d 308]. Counts 2, 4 and 5 of the indictment were quashed as to him.

There is evidence that he was actively engaged with Stern in the commission of abortions, as a receptionist of women seeking abortions, while Stern was engaged in that illegal business in Contra Costa County; that he took to his codefendant Ray in San Francisco his share of the proceeds from abortions; and that he went with his codefendant Tracy to the Oakland office of their codefendant Stock to inform Stock that Stern had opened a place for the performance of abortions in Richmond. This visit to Stock is alleged as one of the overt acts done in furtherance of the conspiracy.

It is argued that the only evidence on the subject shows that petitioner withdrew from the conspiracy about June 1, 1946. Since petitioner’s attack on the indictment hinges almost entirely on this evidence we quote it here verbatim:

“Q. When you first came down here to Oakland what did you and the other girl do? Were .there two girls then? A. Yes sir.

“Q. Had Losier left? A. Yes sir.

“Q. When did he quit out there? A. Around the first of June.

“Q. Why did he quit? A. He had a fuss with the Doctor.

“Q. He had a fight with the Doctor? A. Yes sir.

“Q. What was that about? A. They just couldn’t get along.

“Q. They couldn’t get along? A. No sir.”

Petitioner points to the fact that there is not a syllable of evidence in the transcript that after he quit about June 1, he was actively connected in any way with the conspiracy.

[32]

All of the substantive offenses, except those quashed as to petitioner, occurred in Oakland between August 1 and August 23, 1946. As to all of these offenses petitioner argues that there is no evidence before the grand jury to connect him with their commission.