People v. Gilman

Defendant was convicted of abortion and from the judgment and order denying her motion for a new trial the appeal has been taken. Some claim has been made that the evidence is insufficient to support the verdict, and the appellant indulges in a criticism of the testimony of certain witnesses of the prosecution, claiming that in certain respects it is inconsistent and unsatisfactory. [1] After a careful reading of the record, however, it must be stated that the verdict is supported in ample measure. The prosecutrix seems to have related a straightforward story that carries upon its face convincing evidence of her veracity. She manifested no unwonted hostility to the defendant, but was apparently disposed to relate all the facts of the case within her knowledge just as they transpired. It is true that her evidence alone, within the purview of the statute (Pen. Code, sec. 1108), must be corroborated in order to justify legally a conviction. That corroboration is, however, found in full measure in the record before us. We deem it unnecessary and unprofitable to set out in detail the evidence which justifies the conviction. It is sufficient to say that one Mrs. Johnson was present at the place where the offense was committed at the very time of the delivery of the foetus, and her testimony is strong and convincing as to the criminal conduct of defendant. She also related a conversation which she had with defendant which was indicative and persuasive of defendant’s guilt. It may be added that the record contains substantial, significant, and important circumstantial evidence, all tending toward the support of the verdict of the jury. Indeed, it is rare that a ease of this character is established by such a strong array of positive and circumstantial evidence. It would be singular and unexpected if

Viewing the whole record in the light of the strong and conclusive evidence of guilt, it could fairly be said that none of the assignments of error could have resulted in a miscarriage of justice, and, hence, we would be justified in brushing them aside as not warranting specific consideration. We have, however, examined them with some degree of care and are prepared to say that no substantial error was committed by the trial court. The defendant seems to have been granted every right to which she was entitled under the law. The trial judge conducted the proceedings cautiously, impartially, and justly. The instructions thoroughly and correctly presented the law of the case and left nothing unsaid that was necessary for the guidance of the jury in their determination of the guilt or innocence of the defendant. It is true that certain instructions, proposed by her, were refused, but as far as correct in doctrine and applicable to the facts of the case, they were entirely covered by instructions which were- given.

As to the rulings upon the admissibility of evidence they are so palpably and clearly sound that we are hardly called upon to specifically notice them. However, we may refer to one or two of these assignments of error. Objection was made, for instance, to this question addressed to Mrs. Johnson: “Q. Was there anything said subsequent to, after what you saw, between you and the nurse, this defendant, Gilman, as to what you saw and what transpired?” The answer of the witness was: “I spoke afterward, that I thought Mrs. England was quite lucky to be living.” [2] In the first place, no objection was made to the question until after it was answered, and, hence, the objection came too late. Again, under a familiar rule it was admissible as a part of the conversation, in view of the response made by said defendant to said statement. That answer was: ‘‘ She said her work always spoke for itself.” As a part of the same conversation, it may be added, the witness testified: “I asked her what she might do about it, about the baby, and she says, ‘I told Mrs. England that I would take it to the coroner, but that would cause me too much questioning,’ and she further said, ‘I will build a good fire.’ ” It may be added that the only objection to this part of the conversation was upon the ground that it was leading, which, of course, is inconsequential.

The only ruling during the trial that is worthy of serious consideration relates to the admissibility in evidence of certain ashes containing, according to the testimony of Dr. Nahl, the fragments of human bones and also certain surgical instruments that were found in the washstand in the bedroom where the crime was committed. As to the first, however, there was strong circumstantial evidence that said ashes were the product of a fire made by the defendant to destroy the foetus, in accordance with her statement made to Mrs. Johnson. At least, the showing was sufficient to justify its consideration by the jury. [3] In reference to the surgical

Before concluding, we may state that the case of People v. Josselyn, 39 Cal. 393 , involves a very different state of facts from the case before us. Therein there was no corroboration of the testimony of the prosecutrix and it is only instructive in the present instance in its discussion in the supplemental opinion of the court as to the character of the corroboration that is required to justify a conviction. Herein, as we have before seen, there was ample corroboration not only by the testimony of a disinterested witness, but also by an array of circumstantial evidence that is quite significant and potential.

We deem it unnecessary to notice further the various contentions of appellant, as after careful examination of the whole record we are entirely satisfied that the defendant Was justly convicted and that there is no substantial merit

Ellison, P. J., pro tem., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied hy the supreme court on December 4, 1919.

All the Justices concurred except Melvin, J., who was absent.