People v. Cook

CASHIN, J.

The defendant was charged by an information filed in the superior court of Alameda County with the murder of Elizabeth Buckles. Upon the trial the jury returned a verdict of murder of the second degree, and from the judgment thereon and an order denying a motion for a new trial the defendant appealed.

As grounds for reversal it is contended that the evidence is insufficient to support the verdict, that the conduct of the prosecuting attorney during the course of the trial was prejudicial to the rights of the defendant, that the court erred in admitting certain evidence over objection, and failed • to instruct the jury upon matters material to the defense.

The evidence shows that on December 20, 1927, an operation for the purpose of producing an abortion was performed upon Elizabeth Buckles, who was pregnant and who died on the operating table. According to the testimony of Josephine Risius, she, with one Cole, assisted in the operation, which was performed by defendant. She testified that chloroform was administered by Cole and that the woman, while under its influence but during the course of the operation, died. Physicians who made a post-mortem examination testified that the woman was pregnant, and the cavity of the uterus was dilated, that within the same was found the partially dismembered foetus and placental tissue, much of which had been torn from the walls of the uterus, and that the head and one of the lower limbs had been torn from the body of the foetus. A physician further testified that some outside influence, substance, or metal instrument had been used to dilate the cervix, testifying that in his opinion the major cause of death was hemorrhage and shock. Although the defendant denied that he assisted in the operation, it is admitted that he was present in the office maintained by Cole about the time the death occurred and aided Cole and the witness Risius in an attempt to re

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vive the deceased. On this occasion, according to another witness, he was clad in a gown of the kind worn by surgeons in the operating room. It further appears that Cole was not a licensed physician, although representing himself to be such; that the defendant frequently visited his office, where were found instruments and paraphernalia used in the performance of such operations. It was further shown that after the death of Mrs. Buckles, but before the discovery of her body by the authorities, a person employed in the building in which the office mentioned was situated was requested by defendant to deny in case inquiry should be made that the latter had been associated with Cole. Other circumstances were shown strongly tending to connect the defendant with the death, and the evidence adduced was ample to sustain the conclusions of the jury.