People v. Rhoades

PEEK, J.

Defendant appeals from a judgment convicting her of four counts of the crime of abortion.

By the amended information, she was charged in count one thereof with the commission of an abortion upon one Agnes on July 3, 1947; count two charged the commission of the same crime upon the same person on a subsequent date, to wit: July 9, 1947; count three charged the commission of an abortion upon one Betty on December 20, 1946; count four charged the commission of an abortion upon one Arlees on July 2, 1947, and count five charged the commission of an abortion upon one Elsie during the month of August, 1946. In addition, said information charged the defendant with the commission of a prior felony (murder in the second degree) and the service of a term of imprisonment therefor in the state prison."

The defendant pleaded not guilty to each count of abortion but admitted the prior conviction. After her motion to dismiss the information was denied the trial proceeded before

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a jury which returned a verdict of guilty as to counts one, two, three, four, and not guilty as to count five.

Defendant’s motion for a new trial was denied as was her application for probation. The judgment which was thereafter entered ordered that the sentence under count two should run concurrently with the sentence under count one; that the sentence under count three should run consecutively with that imposed under count one, and that the sentence under count four should run consecutively with that under count three.

Her appeal, which does not challenge the sufficiency of the evidence to sustain the verdict, sets forth four contentions, to wit: (1) that she was placed in double jeopardy under counts one and two in that she was charged, tried and convicted twice for the same offense, (2) that the trial court committed error in the giving and refusing of instructions, (3) that the trial judge committed prejudicial error in his rulings on the admissibility of evidence and (4) that the district attorney was guilty of prejudicial misconduct.

Defendant’s argument in support of her first contention is that the crimes charged in counts one and two were in fact but one crime, in that by the testimony of the prosecution witness it was shown that although she received two treatments such treatments were administered with the intent to abort but a single pregnancy, and that therefore she was placed in double jeopardy by being charged and convicted twice for what was but one offense. Such contention is without merit since section 274 of the Penal Code provides that: