People v. Mount

HAHN, J.,

pro

tem.

Appellant was charged by information filed by the district attorney of Los Angeles County with the crime of murder. From the judgment upon a verdict of guilty of manslaughter, and an order denying the defendant’s motion for a new trial, this appeal is prosecuted.

Four assignments of error are stated, as follows:

First. “A dying declaration, or statement, was admitted in evidence contrary to law, and to the injury of this appellant ; the said declaration is set forth on pages 69 and 70 of the reporter’s transcript.”

Second. “The statement made by the defendant, alleged to be a confession, as found on pages 33 to 70 of the reporter’s transcript.”

Third. “The court allowing testimony to be introduced as to instruments in Dr. Mount’s Belvedere office a long time prior to the 15th of November, 1927, as found on pages 187

[83]

and 205 of the reporter’s transcript, wherein the witness, Dr. J. J. Mortensen, testified, beginning on page 193, that in the fall of 1924 the defendant had instruments, and various instruments, that could be used to produce an abortion. ’ ’

Fourth. “The fourth assignment of error relied upon by this appellant is the error in giving instructions, and the failure to give instructions, and the theory upon which this case was submitted to the jury; that is to say, that the defendant was charged with murder, or homicide.”

While there is a sharp conflict in the evidence upon several material matters, there is sufficient evidence to have justified the jury in accepting the following as a fair story of the material events and circumstances relating to the case:

The deceased, Violet Van Tassel Berdue, was a young married woman of the age of twenty-five years. Early in October, 1927, she was taken ill with pains and dizzy spells. Attributing her suffering to the fact that she had passed her menstrual period, upon the advice of a woman friend, she consulted the defendant, who was a licensed chiropractic practitioner. After the defendant had made an examination of the patient and had listened to her story, he gave her an electric treatment and then inserted two instruments in her vagina. She was told to return on the following day, when again an instrument resembling a clippers was inserted into her vagina. Two days later, on October 17th, she was treated by the defendant in a similar manner with instruments. On this third occasion the defendant stated to the deceased: “You are in a pretty bad condition, but I can’t make you come.” He then inserted a tube into the patient’s vagina, with instructions that it be kept there during the night. Some time during the night she began to flow. Several days later the patient called at the defendant’s office, where she was treated by him, and shortly thereafter he visited her at her home, where she was confined to her bed, suffering from vomiting and nausea, and running a high fever and rapid pulse. She was then removed to the county hospital, where she was under the care of a regular physician, but, on November 6th, she was taken to the Angelus Hospital, where she was under the care of Dr. A. M. Hansen, a regular physician, until her death, which occurred on November 15th. At the Angelus Hospital she was given