People v. Lorraine

THOMPSON, J.

The defendant was convicted of the crime of abortion under the provisions of section 274 of the Penal Code. From the judgment which was accordingly rendered and from the order denying a new trial he has appealed.

It is contended the verdict and judgment are not supported by the evidence for the reason that the testimony of the prosecutrix, upon whom the crime was committed, is not sufficiently corroborated to meet the requirements of section 1108 of the Penal Code.- It is also asserted the court erred

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in receiving evidence of communications with the defendant over the telephone without adequate proof of a recognition of his voice or of his identity.

There is no merit in either of the preceding contentions. The prosecutrix testified to a convincing story of her condition and her first visit to the defendant at his home in Sacramento on January 7, 1938. They discussed her condition and he agreed to perform the illegal operation of abortion prohibited by section 274 of the Penal Code for a consideration of $75. At his request she returned the following day. She described exactly how he then performed the operation, and she identified the instrument which he used for that purpose. She also related the advice which he instructed her to follow thereafter. She paid his fee of $75 and returned in her apartment. The following day she became violently ill as a result of the illegal operation. The defendant was repeatedly called on the telephone from her apartment, but flatly declined to visit her. He refused to attempt to aid her in any manner. On the 9th of January she was taken to the hospital.

It is true that section 1108 of the Penal Codes declares that:

“Upon a trial for procuring or attempting to procure an abortion, . . . the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence. ’ ’

In the present case the requirements of the preceding section were adequately complied with. There was an abundance of corroborating evidence of the prosecutrix’ straightforward story by four other witnesses. Two reputable physicians of Sacramento, with many years of experience in the practice of their profession, attended the prosecutrix at the hospital on January 10th. Both of them testified that she had lately suffered a miscarriage procured by artificial means with the use of an instrument. The sister of the prosecutrix, in company with a mutual lady friend, visited the defendant at his home on March 3d, and talked with him about his participation in the illegal operation in question. They testified that, in effect, he admitted to them that he performed the operation. They stated that “He said he knew that the work he was doing was illegal. ’ ’ They called his attention to numerous communications which the sister of the prosecutrix had with him over .the telephone the night after the operation