People v. Simon
Before: Hall
Synopsis
Criminal Law—Indictment Charging One Optense—Evidence Showing Different Ottenses—Necessity ot Election.—The rule, that where, in a trial under an indietment ehargirig but one offense, evidence is introduced sufficient to prove two or more separate and distinct offenses, either one of which would support the charge in the indietment, an election is required, if requested, has no application where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense.
Id.—Attempt to Produce Miscarriage—Different Criminal Acts Done in Pursuance of One Agreement.—It is not essential or important to the completion of the offense of attempting to produce a miscarriage of a pregnant woman, as defined by section 274 of the Penal Code, that a miscarriage be actually produced; and where, under one agreement to procure a miscarriage, a defendant does a series of criminal acts on different days in the effort to produce such a miscarriage, all the acts may be and justly should be treated as done in the commission of one and the same transaction.
HALL, J.
Defendant, a woman, was convicted under an information which charged that she “on the 15th day of June, A. D. 1912, at the said county of Alameda, state of California, did willfully, unlawfully and feloniously use and employ certain means, to wit, instruments and drugs, in, about and upon and within the body of Helen Neuman, the said Helen Neuman being then and there a woman pregnant with child, as- the said E. Sattler Simon then and there well
[89]
knew, with intent thereby then and there to procure the miscarriage of her, the said Helen Neuman.”
The evidence tends to show that Helen Neuman early in June, 1912, called upon defendant, and sought her services to procure a miscarriage of Helen Neuman. Defendant at this interview offered to perform the abortion for twenty dollars, but on acount of the price no agreement was reached. On the next day defendant called on Mrs. Neuman at her house, and offered to perform the abortion for her for fifteen dollars, provided that she, Mrs. Neuman, would come the afternoon of that day. Accordingly Mrs. Neuman visited the residence of defendant, and upon the statement of the defendant “that she wanted her money first before she would perform the abortion” Mrs. Neuman paid her fifteen dollars. Thereupon, as the evidence amply tends to prove, defendant proceeded to use an instrument in and upon the uterus of Mrs. Neuman for the manifest purpose of procuring a miscarriage or abortion. As a result Mrs. Neuman was for a time ill, and blood flowed from her vagina, but no miscarriage followed.
This operation occurred upon Saturday, the eighth or fifteenth day of June, 1912. In about a week from the first operation Mrs. Neuman telephoned to defendant that no miscarriage had resulted, and was told by defendant to come to her house and she (defendant) would give her some pills. Accordingly Mrs. Neuman on the same day called at the home of defendant and obtained some .pills to take, and was told by defendant that if the pills were not effective to come again in a few days. Altogether defendant gave Mrs. Neuman pills on four occasions but without any result so far as producing an abortion or miscarriage.
Finally defendant informed Mrs. Neuman that she would have to perform a second “operation,” but would like to have Mrs. Neuman wait a little longer. Later defendant called on Mrs. Neuman and told her to come to her (defendant’s) home and she would again perform the abortion. Accordingly on the following Saturday, July 21, 1912, Mrs. Neuman went to the residence of defendant, where defendant again used instruments in and upon the uterus of Mrs. Neuman with the manifest purpose of procuring a misear
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