People v. Curry-Allen

FOURT, J. This is an appeal from a judgment of conviction and from a denial of a motion for a new trial in a case involving abortions.

In an information filed in Los Angeles County, the appellant, an osteopathic physician and surgeon, was charged with four counts of abortion as follows:

Count I—an abortion on Jean Cluxton on June 6, 1955 ;

Count II—an abortion on Mary Scaliee on August 19, 1955;

Count III-—an abortion on Mrs. R. W. Cavanaugh on August 27, 1955;

Count IY—an abortion on Connie Stamps on October 24, 1955.

The appellant pleaded not guilty to all counts and then withdrew such plea as to count II, and pleaded guilty thereto. Afterwards, he withdrew his guilty plea to count II, and once more pleaded not guilty. It was stipulated that the case might be submitted on the evidence received at the preliminary hearing, both parties preserving the right to produce additional evidence.

The judge found the appellant guilty as charged as to counts I, III and IV, and not guilty as to count II. A motion for a new trial was denied. The proceedings were then suspended and appellant was granted probation for five years as to each count, the probationary terms to run concurrently, and the appellant to pay a $1,500 fine.

As to count I, Jean Cluxton had sexual intercourse sometime in April, 1955, and in the latter part of May she went to the appellant’s office. Appellant asked her the nature of her business and she told him that she had a problem which she had heard he might be able to solve for her. Appellant then inquired about her menstrual period and asked her other questions. He then directed her to remove her underclothing and to get on an examination table. She complied, put her feet into stirrups, and a large metal object was inserted into her vagina, and she felt the pressure of appellant’s hands upon her stomach. He told her that her problem could be taken care of for $400, which should be [825]paid in cash and small hills. On June 6th, she went to appellant’s office thinking she was pregnant. Other than the pregnancy, she was of the opinion that she was in good health. She placed $400 in 20-dollar bills on his desk. He gave her a small tablet and a glass of water and said it was for her nerves. She then complied with his request and took off her clothes, put on a hospital gown, and got onto the examination table. Appellant was sorting out various instruments, and when he started his procedure with her she felt a small pain and a probing inside of her. He told her that he had placed a pack inside of her and that it was to be removed in 24 hours; also, he gave her some pills for pain, and his card indicating where he could be reached in case she needed him. Further, he wrote on the back of his card “Citrate of Magnesia, take the whole bottle.” On the face of the card there was contained his name and designation as a physician-surgeon osteopath, with his address and telephone number. She later removed the pack as directed and noticed a color thereon similar to mercuroehrome. On Wednesday she returned to the appellant who gave her some medication to induce cramping. On Friday she felt something pass from her body. The appellant was called but he told her to come to his office. She went to his office, where he treated her. Barbara Whitten was with her at the time and talked to the appellant. He gave Mrs. Whitten some pills for Jean which he said were to prevent infection, and also a prescription for some medicine which “he said was to prevent the milk coming in.” Mrs. Whitten identified a picture of the office with the name of the appellant on one window as the office she and Jean Cluxton visited.