People v. Devaughan

STURTEVANT, J.

By information the district attorney charged O. W. DeVaughan with having committed (1) a conspiracy to commit an abortion, (2) a conspiracy to commit a violation of section 21 of the Juvenile Court Law and (3) that this defendant alone violated said section. The defendants pleaded not guilty. They were tried before the court sitting with a jury. The court advised the jury to acquit. The jury did not do so, but returned a verdict finding McCoy guilty on the second count and DeVaughan guilty on the first and second counts. Each moved for a new trial. The court granted McCoy’s motion. It granted DeVaughan’s motion as to the first count and denied it as to the second count. From the judgment of conviction and the order denying a new trial the defendant has appealed.

On the third day of July, 1929, the prosecutrix went to work for Mr. and Mrs. McCoy, 1050 Sanchez Street, in San Francisco. She testified that on the evening of the 6th of July, 1929, when Mrs. McCoy was away from home, Mr. McCoy gave her a glass of port wine. She dimly remembered that later she was on her bed. She did not remember anything else till Mrs. McCoy came home at 2 A. M. At that time she did not know that she and McCoy had had intercourse. Later, July 13, 1929, she discovered that she had had intercourse with him. On that same date Mr. and Mrs. McCoy took her to Dr. DeVaughan.

On the trial the prosecution claimed that Mrs. McCoy took the witness to have an abortion performed. The defense claimed that she was taken to receive treatment for gonorrhoea. Judging by the orders made by it, we assume the trial court adopted the theory of the defense and re

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jected the theory of the prosecution on this part of the charge.

As to the second count the prosecution contended that the commission of an abortion, or an attempt to do so, would bring the perpetrators within the purview of section 21 of the Juvenile Court Act. But an abortion cannot be performed on a woman who is not pregnant. There is not in the record a particle of evidence that the prosecutrix is, or ever was, pregnant. The rulings of the trial court, as above shown, have, in legal effect, so held. If we consider that section 21 of the Juvenile Court Act commonly applies to acts committed to arouse the passions