THE PEOPLE, Respondent, v. LOIS BROWN, Appellant.
Crim. No. 6112
In Bank. Supreme Court of California
Jan. 7, 1958.
49 Cal. 2d 577
Edmund G. Brоwn, Attorney General, William E. James, Deputy Attorney General, Vern B. Thomas, District Attorney (Santa Barbara), Frank J. McCarthy, Assistant District Attorney, and Thomas P. Weldon, Deputy District Attorney, for Respondent.
The abortion of Clara was committed on January 18, 1956, and the abortion and murder of Lucy were committed on January 26, 1956. Clara and Lucy resided together in Santa Maria. On January 18, 1956, Lucy had been pregnant for six months and Clara for three months. Clara testified as follows:
On January 18, Clara first met defendant Lois Brown, who said her name was Vi. Lucy had received a telephone call, and she and Clara met defendant on the street and got in defendant‘s car. Defendant “asked me how far along I was and I told her . . . That I was three months along. . . . She said I didn‘t have anything to worry about. Lois said that Lucy was a little bit further ahead of me and it was a little more dangerous for her to go through with it, but said she would be all right, if Lucy would be in the care of Vi and present to tie the baby‘s navel cord and watch her from hemorrhaging.” Lucy got out of the car and went back home and defendant and Clara went to 2650 South Broadway. At defendant‘s request Clara gave her $100. Defendant inserted a syringe in Clara‘s genitals and injected a solution which looked and smelled like Lifebuoy soap. At this time Clara was in good health. Defendant “said that she was in need of the money and she wished she could take us both . . . She said she was doing it to us for $100.00 and she usually did it for $200.00 in Los Angeles.”
Defendant and Clara then went to the cafe where Lucy worked and defendant “told Lucy that I was going to be all right and told her that she would see her later and see if she could get any money to go through with hers.”
Beatrice Duran testified that she was at Clara‘s and Lucy‘s home оn the morning of January 19, 1956; that defendant came to the home, massaged Clara‘s abdomen, and called attention to a “meaty” substance which defendant said was the afterbirth; that she explained that “she was massaging her stomach so the womb would go back into place“; and that “she told Clara to go to the doctor and tell the doctor she had a cold and to give her a penicillin shot.”
Dr. Randall, a physician who examined Clara on January 30, 1956, testified that in his opinion she had been pregnant and had had an induced abortion about 10 days before his examination. Clara described to the doctor the manner in which the abortion had been performed, by the injection of a solution with a syringe; the doctor‘s findings from his examination “fit in with the history that was given us on the case.”
According to further testimony of Clara, defendant came to the home of Lucy and Clara at about 3:30 p. m. on January 26 and left with Lucy. Lucy was wearing clothes, identified by Clara, which were subsequently found at 2650 South Broadway. When Lucy left the house she was in good health. Shortly prior to January 26 Clara had repaid Lucy $100
As defendant, her mother, and Clara waited outside the emergency room, according to Clara‘s further testimony, defendant “said she knew she shouldn‘t have done it, and . . . took out her wallet, took out $30.00 and gave it to me and she said that those $30.00 were to help me in case Lucy needed anything.”
A doctor then informed Clara, defendant, and defendant‘s mother that Lucy was dead on arrival at the hospital. As Clara, defendant, and defendant‘s mother waited, defendant “said that she didn‘t know what to do—whether to tell the truth or tо deny it . . . [Defendant] asked me what she should do—whether she should run away or stick it out . . . and then she took out her wallet again from her purse and told me—‘Here‘s the rest of Lucy‘s money so that you can use it for her funeral.‘” Defendant then gave Clara $70.
A physician who performed an autopsy upon the body of Lucy testified that in his opinion she died of acute loss of blood from the large blood channels within the uterus; the forcible separation of the membranes “was caused, in my opinion, by some blunt object which produced dilatation of the cervix“; the membranes of the uterus were of a dark brown color and granular appearance which could have been due to the introduction of chemicals by external means.
Gin further testified that in November or December, 1956, defendant went with Gin to the cafe where Lucy worked and the following conversation occurred: “I introduced Lucy Sanchez to Lois Brown. I said, ‘This is the lady you want to see.’ . . . [Defendant] said—‘I know a lady who can help you.’ . . . [T]hey make appointment, meet in front of the post office, 6:00 the next day.” Thereafter defendant again went with Gin to the cafe and met Lucy. “Lois said, ‘You have the money—I can help you,’ and Lucy gave Lois the phone number of where she lived.” Lucy and defendant said that they would meet the next day.
About five days before Lucy‘s death Lucy and defendant came to Gin‘s room. Lucy asked to borrow some money from Gin. Gin refused but told defendant, “Lucy‘s honest, you can trust her.”
Lucy‘s sister testified that Lucy told her, three or four months before her death, that she was pregnant and was going to have an abortion.
As appears from the foregoing summary of salient portions of the testimony, there was sufficient evidence to support the verdicts. Evidence introduced by defendant in contradiction and attempted explanation of the evidence which supports the verdicts need not be summarized.
Defendant сontends as to count 3 (abortion of Clara) that Clara‘s testimony was not corroborated as required by
The People rely also upon the testimony of Dr. Randall, who treated Clara on January 30, 1956, as corroboration. The doctor‘s testimony does not meet the test of connecting defendant with the abortion which Clara underwent. People v. Ramsey (1948), 83 Cal.App.2d 707, 713, 717 [4] [189 P.2d 802], is inconsistent with People v. MacEwing (1955), supra, 45 Cal.2d 218, 225 [7], insofar as it suggests that testimony which does not itself connect the defendant with the criminal abortion is sufficient corroboration; in this respect the Ramsey case does not represent the law and, to avoid possible confusion, is tо that extent disapproved.
Beatrice Duran testified that on January 19, 1956, defendant came to the home of Clara and Lucy at about 11:00 a. m. and left at about 12:30 p. m., when she drove the witness to her place of work. An attorney whom defendant consulted on a business matter testified that on January 19, 1956, he saw defendant in his office “shortly before noon” and she returned “between 1:30 and 2:00 o‘clock.” Defendant asserts that “It is certainly more probable that an attorney at law would be speaking the truth than Mrs. Duran, Clara‘s girl friend.” Both Mrs. Duran and the attorney purported to give only approximations of the times to which they testified, and there is no indication that either of them was falsifying. It was for the jury to determine the rеlative accuracy or weight of their respective estimates of time and the truth of the balance of Mrs. Duran‘s testimony. Defendant herself, although she denied the incriminating portions of Mrs. Duran‘s testimony, testified that she visited the home of Clara and Lucy at about noon on January 19, 1956, and that she drove Mrs. Duran to work at about 1:00 or 1:30.
As previously stated, Dr. Randall, who examined Clara on January 30, 1956, testified that from his examination of Clara and her case history he formed the opinion that she had undergone an induced abortion. In answer to the question, “Now what were the reasons for your opinion . . . that an abortion was performed and that it was induced?” the doctor testified, “the patient gave me a history of having had . . . the first day of her last normal menstrual period September
“The history was that the individual went to a residence south of the City, and the other person involved went there to perform the abortion on her.”
Defendant‘s counsel moved to strike from the doctor‘s testimony as to the history the portion “beginning with ‘that she went to a certain person for an abortion’ and then on through where she went et cetera.” The court denied the motion but admonished the jury that “any history that has been given to the doctor by the patient . . . is not to prove the truth of those statements. In other words, to whom she went, or where she went,—you are not permitted to take those into consideration as proving the truth of those particular matters to which he testifies, but only to be used as a basis for the doctor‘s opinion.” The doctor then testified to Clara‘s account of the manner in which the abortion was performed.
Defendant urges that the above quoted testimony which she moved to strike, as well as the doctor‘s testimony as to Clara‘s description of the abortion procedure, was inadmissible. It cannot be doubted that a physician‘s diagnosis as to an injury will usually be based (as Dr. Randall testified that a medicаl diagnosis is based) in part upon the history given by the patient. And the physician should be allowed to testify to all the facts upon which he based his opinion, including the case history given him by the patient as well as facts learned by immediate personal observation. Therefore, declarations to a physician concerning physical condition prior to an accident (Groat v. Walkup Drayage etc. Co. (1936), 14 Cal.App.2d 350, 357 [8] [58 P.2d 200]) and declarations as to the history of an accident (Tierney v. Charles Nelson Co. (1937), 19 Cal.App.2d 34, 37 [2] [64 P.2d 1150]) have been admitted as a basis for the opinion of a physician to whom the declarations were made. In the following cases also declarations to a physician were held admissible not to show the truth of the facts stated but as the basis of his opinion: People v. Shattuck (1895), 109 Cal. 673, 678-679 [42 P. 315] [“statements as to past suffering and condition“]; Willoughby v. Zylstra (1935), 5 Cal.App.2d 297, 300 [2] [42 P.2d 685] [declarations “of previous condition and past suffering“]; Rohner v. Cross (1932), 121 Cal. App. 667, 669 [2] [9 P.2d 509] [“some of the history of Mrs.
In Losleben v. California State L. Ins. Co. (1932), 119 Cal. App. 556, 559-560 [2] [6 P.2d 1012], it is held that objections were properly sustained “to questions attempting to bring out what the patient stated to the physician in relation to what had caused the existing condition.” It is said that “It does not appear that these statements were necessary to enable the physician to determine the condition of the insured [patient], and it doеs appear that the nature of his trouble was determined by the physician from his objective examination of the patient.” It is further said, quoting from 22 Corpus Juris, page 268, that “Narrative statements to a physician are to be rejected where they relate to facts not connected with diagnosis and treatment, such as the cause of an illness or injury, the circumstances under which an injury
Dr. Randall‘s testimony that Clara stated that she “went to a residence south of the City” should have been stricken since it was not as to a declaration upon which he based his opinion as to her condition. However, it does not appear that the admission in evidence of that declaration prejudiced defendant, in view of Clara‘s testimony to the same effect.
Defendant complains that Dr. Randall testified to an ultimate fact in issue, that is, that Clara had undergone an induced abortion. It is now well settled that there is in this state no absolute rule that an expert cannot testify to an ultimate issue of fact. (People v. Johnston (1957), 48 Cal.2d 78, 90-91 [307 P.2d 921]; People v. Cole (1956), 47 Cal. 2d 99, 105 [3] [301 P.2d 854]; People v. Martinez (1952), 38 Cal.2d 556, 564 [6] [241 P.2d 224]; People v. Wilson (1944), 25 Cal.2d 341, 349 [15] [153 P.2d 720].) Here, as in the Wilson case, the physiсian could give the jury the benefit of his expert knowledge relative to this pertinent event only by testifying to such ultimate fact.
Defendant complains of the admission in evidence of a syringe which was expressly offered and received solely for the purpose of illustration. Clara testified that the instrument was similar to the one used by defendant but on examination by defendant‘s counsel she testified to a number of particulars in which it differed from the instrument used by defendant. Objects similar to those connected with the commission of a crime can properly be introduced in evidence for the purpose of illustration. (People v. Miner (1950), 96 Cal.App.2d 43, 51 [5] [214 P.2d 557]; see Fricke, Criminal Evidence (4th ed., 1957), pp. 149-150.) While we do not commend the practicе of introducing in evidence as illustration an object which is not substantially identical with the object to be illustrated, it does not appear that the use of the syringe as illustrative evidence could have prejudiced defendant.
Defendant complains that the trial court erred to her prejudice in receiving the testimony of Ira Gin that about
Defendant argues at some length, by quotation from medical textbooks, against the correctness of the autopsy surgeon‘s conclusion that Lucy‘s abortion was induced. This argument is not based upon evidence which was before the
As previously indicated, a statement of defendant made to the investigating authorities on the day after Lucy‘s death was read to the jury. This statement had been reported by a shorthand reporter and was also recorded. When the prosecution offered the statement in evidence by testimony of the reporter from his transcription of his notes, defense counsel, out of the presence of the jury, asked that instead the record be played because “that is the first or original testimony and . . . anything else would be secondary.” The court ruled, “We will have the statement [read] now and then get the recording.” Defense counsel stipulated that the statement could be read into evidence “with the further provision that the rеcord may be made available.” The record was subsequently played to defense counsel out of the presence of the jury.
Thereafter defendant testified that while Deputy District Attorney Weldon was obtaining the statement, “he would ask me three or four questions at a time, sort of shouting and yelling at me without letting me answer at least one of them before he got all the other ones in,” and that this conduct persisted throughout defendant‘s questioning. On rebuttal the People asked to play the recording to show the manner in which defendant‘s statement was taken by Mr. Weldon. Defense counsel objected that it would be erroneous and unfair to introduce a repetition of defendant‘s statement by playing the record. After argument before the jury the court sustained the objection, stating that to play the record would be to place the same evidence before the jury twice.
In argument counsel for the prosecution referred to defendant‘s testimony that during the taking of the statement Mr. Weldon shouted, “asked two or three questions at the same time, and didn‘t give her a chance to answer, and that that course of conduct persisted throughout her entire questioning.” The prosecuting attorney argued, “The Court would not permit the actual voices of Mr. Weldon and Mrs. Brown to be played before you, but the denial of that permission was raised by an objection which the defendant made. Thе defendant herself made that objection and his Honor passed on it as a legal matter, and I cannot comment any more on that, except to say that, in my opinion, that that
Defense counsel assigned this argument as prejudicial error. The prosecuting attorney replied, “I have mentioned the fact which the jury heard, that there was an objection made and a ruling by the Court by reason of which that was not permitted to be played. I do not think that is improper.” The trial judge agreed with the prosecution and ruled, “It is an inference which the jury may draw if they see fit to do so.”
The prosecutor‘s argument and the judge‘s ruling improperly encouraged and permitted the jury to speculate that the defendant objected to the admission in evidence of the recording of the statement because it would refute her testimony as to the manner in which Mr. Weldon questioned defendant. It is the law, and the jury were instructed, that “At times throughout the trial the court has been called upon to pass on the question whether or not certain offered evidence might properly be admitted. You are not to be concerned with the reasons for such rulings and are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law.” While it does not appear that the giving of the quoted instruction could have counteracted the effect of the specific ruling that “It is an inference which the jury may draw if they see fit to do so,” it further does not appear that such erroneous ruling resulted in a miscarriage of justice. Although in a close case such error could well require a new trial, from a review of the entire record here it is clear that the case was not a close one, and it does not appear that the reason for the exclusion of the recording from evidence could have been a determinative factor in the jury‘s conclusion.
Defendant contends that the two convictions for crimes against Lucy, murder and abortion, cannot stand because of the provision of
Contrary to the approach of the foregoing cases is People v. Coltrin (1936), 5 Cal.2d 649, 660-661 [55 P.2d 1161], which holds that in the case of murder in the commission of an unlawful abortion the two offenses can both be punished. (See also People v. Powell (1949), supra, 34 Cal.2d 196; People v. Gomez (1940), 41 Cal.App.2d 249 [106 P.2d 214], where convictions of abortion and of homicide resulting from the abortion were affirmed, but the question of double punishment for one act was not considered.) The discussion of
Specifically concerning
It is further said in the Coltrin case (p. 661 [14] of 5 Cal. 2d), “The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only are these two offenses separate and distinct in a legal sense and each dependent upon evidence not required in the other, but as a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element.” It is artificial to say that the act which caused death in the Coltrin case, and the act which caused death in the present case, was another act than that which constituted the abortion. Furthermore, under
To preclude the possibility of the dual judgments prejudicing defendant in the fixing of her term by the Adult Authority, the judgment of conviction of the less severely punishable offense should be reversed. (See People v. Roberts (1953), 40 Cal.2d 483, 491 [16] [254 P.2d 501]; People v. Knowles (1950), supra, 35 Cal.2d 175, 189; People v. Kehoe (1949), supra, 33 Cal.2d 711, 716.)
Gibson, C. J., Carter, J., Traynor, J., Spence, J., and McComb, J., concurred.
SHENK, J.—I dissent.
The precise question invоlved in this case was decided contrary to the contentions of the defendant by a unanimous court in People v. Coltrin, 5 Cal.2d 649 [55 P.2d 1161], and I can see no good reason or justification for overruling it. This court there construed the statute and the decision has been in effect for over 21 years. In the meantime the Legislature has not changed the law to conform to the views of the present majority of the court, which, contrary to the established law, now proceeds to legislate on the subject and thus to make it easier for a lawbreaker to escape the penalties of the law.
It is conceded that the defendant‘s conduct as to Lucy Sanchez constituted a violation of both
“Certainly murder does not include abortion. Neither is the converse true. Death is by no means a necessary ingredient of abortion. There are classes of crime which have the same basic elements and a conviction or acquittal of one is a bar to a prosecution of the other. Assaults are of this class and a conviction of an assault with a deadly weapon
The court specifically considered
In 1949 this court also affirmed a judgment of conviction of abortion and manslaughter in a case where the offenses arose out of the death of the victim following her abortion. (People v. Powell, 34 Cal.2d 196 [208 P.2d 974]; see also People v. Gomez, 41 Cal.App.2d 249 [106 P.2d 214].)
I would affirm the judgment in its entirety.