People v. Odmann

DRAPER, J.

Defendants, husband and wife, were tried under an indictment in three counts, charging (1) the murder of Estelle Bach, (2) employment of an instrument with intent to procure the abortion of Lois Moore, and (3) a like offense upon Estelle Bach. The murder charge was based upon evidence that Mrs. Bach died as the result of an abortion performed upon her after that charged in Count 3. Jury verdict found each defendant guilty of all three charges, and fixed the murder as of the second degree. Defendants appeal from the ensuing judgment, and from denial of their motions for new trial.

A principal contention of appellants arises from the cross-examination of Mr. Odmann. Mrs. Odmann did not take the stand. After the prosecution rested, counsel for defendants stated: “.

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. as to Count 2 of the indictment, charging the defendants with violation ... as to Lois Moore, the defense will rest; and, proceeding on Counts 1 and 3, I will call Mr. Odmann.” Defendant husband testified, on direct, that he had performed two attempted abortions on Mrs. Bach, each by insertion of a catheter. As to each of these events, and his meetings with Mrs. Bach in connection therewith, he carefully limited his recital of activities to the first person singular, thus impliedly, although not directly, negativing the testimony of the accomplice Anderson implicating Mrs. Odmann in the Bach abortions. Odmann also testified that when he and his wife met Mrs. Bach in her apartment, after the first or second abortion, Mrs. Odmann did not know of the abortions. He testified that on this occasion appellants were introduced as “Mr. and Mrs. Collins,” thus contradicting the testimony of the witness Gudelj, who had testified that the wife was intro

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duced as “Dr. Collins.” Odmann denied performing a third abortion upon Mrs. Bach, and denied being present at anytime when a curettement was performed upon her. His testimony on direct did not deal at all with the Moore abortions.

It is apparent that the purpose and effect of his testimony was to absolve his wife of all connection with the Bach abortions, to negative the corroborating evidence which tended to establish her guilty knowledge of them, and, as to himself, to deny participation in the abortion which caused Mrs. Bach’s death. On cross-examination, he testified that his wife is a registered nurse and an anesthetist. He denied that he acquired his knowledge of the performance of abortions through observation of such operations performed by his wife, denied that she performed abortions upon Lois Moore and a girl from Sonoma. He denied the testimony of another witness that Mrs. Odmann was the woman with whom he registered at the motel where one of the two abortions of Lois Moore was performed, on the date of that abortion, and that she was the person whom he had registered as his wife at other motels where abortions had been performed. He admitted that he could not perform an abortion by curettement. All this cross-examination was over objection on the part of Mrs. Odmann that it was in violation of the privilege of a spouse, and the further objection, apparently of both parties, that it was outside the scope of the direct examination.