People v. Stuart

168 Cal.App.2d 57 (1959) THE PEOPLE, Respondent,

v.

WALTON VAN NORT STUART, Appellant.

Crim. No. 3490. California Court of Appeals. First Dist., Div. One.

Feb. 17, 1959. Haley, McInerney & Logan and Richard G. Logan for Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Peter T. Kennedy, Deputy Attorney General, for Respondent.

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 diaphram"--a [59] 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.