People v. Marineau

Appellants were charged in an information filed by the District Attorney of Los Angeles County with the violation of section 274 of the Penal Code in that on or about September 15, 1941, in said county, they did wilfully, etc., provide, supply, administer, procure, use and employ an instrument upon the person of one Reva Shirley, a woman, with the wilful and felonious intent then and there to procure the miscarriage of said Reva Shirley, and that the use and employment of said instrument to procure a miscarriage was not necessary to preserve her life. In a second count of the information appellants were charged with violation of the same section in that on or about October 6, 1941, they did the same acts in connection with one Estelle Stein. Motion to set aside the information was denied as to each appellant and each appellant entered a plea of not guilty as charged. After a trial by jury verdicts were returned finding each appellant guilty as charged in each count. Motions for new trial on behalf of each appellant were denied; and appellants were sentenced. In the case of appellant Vremsak, the sentence was suspended and appellant was granted probation on certain terms. The appeals here taken are from the order denying the motions for new trial and from the judgments of conviction.

Appellants contend that the court erred in admitting evidence of other acts and offenses not charged in the information ; that there was error in admitting the testimony of a woman deputy sheriff as to her going to the office of appellant Marinean and there submitting herself to an examination; that there was error in the admission of certain other evidence and in the admission of a certain purported accusatory statement; that there was insufficient corroboration of the testimony of accomplices; and that the court erred in giving certain instructions. On behalf of appellant Vremsak, in addition, it is urged that the evidence offered was insufficient to sustain a conviction, as to her, upon either count

The record reveals the following evidence. The prosecutrix under the first count was an unmarried girl, who had been keeping company with a young man with whom, as their acquaintance progressed, she had had sexual intercourse. Her menstruation ceased about June 1, 1941. The prosecutrix discussed this situation with the young man in question. The prosecutrix told the young man she had gone to a doctor and that she was pregnant. The young man, one Dickson, told her that he knew a doctor’s name. The prosecutrix and Dickson discussed the matter numerous times, and Dickson also said he knew of a prescription that would cause a miscarriage. Dickson, also suggested an abortion, but the prosecutrix did not want to submit to such a treatment. However, Dickson gave the prosecutrix the name of appellant Vremsak and an address on Hollywood Boulevard; and on September 13, 1941, the prosecutrix went to an office on the second floor at this address. On the door of the office were the names of a Dr. Stevens and appellant Marinean. Appellant Marinean was a chiropractor. At this time the prosecutrix had been having “morning sickness” for about three weeks, and had been gaining weight. She stated that her purpose in going to the office in question was “to have an operation.” The prosecutrix entered the reception room of the office suite in question and was there greeted by appellant Vremsak. The prosecutrix stated that she was the girl that had an appointment for one o’clock. Appellant Vremsak then took the prosecutrix into another room which contained what appeared to be an operating table and a sort of covered closet that had instruments in it. There was also a sterilizer in the room. The prosecutrix removed her underclothes at appellant Vremsak’s direction; and the appellant placed the prosecutrix upon the operating table. Appellant Marinean then came into the room and examined the prosecutrix. After the examination the prosecutrix went into another room with appellant Vremsak. According to the testimony of the prosecutrix, appellant Vremsak there told her that the prosecutrix was approximately “three months along” and that she would have to be packed; and that if she and Dickson would come over to appellant’s home that evening, appellant Vremsak would discuss the details and the financial aspects. Appellant Vremsak gave the prosecutrix appellant’s name and ad

Dr. Hermann, the family physician, was called as a witness. He testified that on the occasion of his first examination of the prosecutrix he found her abdomen and pelvis exceedingly rigid and tender throughout. The prosecutrix was pale, quite thin, had a rapid pulse, her skin was hot and dry and there was a foul odor in the room. The doctor advised immediate hospitalization and at the hospital upon examination he found a foul greenish vaginal discharge. A visual examination showed the cervix and vaginal walls to be bluish in color. The cervix showed evidence of what the doctor stated he thought at the time to be an old laceration. The cervix was dilated between a half and one centimeter. The laceration in question was on the right side of the cervix, about midway from the top to the bottom. After certain eul

The testimony of Robert Dickson, the young man above referred to, was consistent with that of the prosecutrix. He also testified that during the time he was having relations with the prosecutrix, or any time thereafter, or at any time after he met her, he did not have gonorrhea. Instruments which the prosecutrix identified as resembling those appellant Marinean inserted in her vagina were put in evidence.

The prosecutrix under the second count of the information testified that she was a married woman living with her husband and having normal marital relations with him. She was 42 years old. Prior to October 6, 1941, she had missed her menses and believed herself to be pregnant. In the morning of October 6th her husband drove her to the offices of appellant Marinean in Hollywood. The prosecutrix testified that her purpose in going there was to find out if she were pregnant, and if she were she wanted to have an operation. When the prosecutrix entered the reception room of appellant Marineau’s offices, she was met by appellant Vremsak who told her to wait for the doctor. Later appellant Marinean called the prosecutrix into the room and there the prosecutrix told appellant Marinean that she thought she was pregnant and wanted to know if anything could be done for her. Her statement in this regard was: “I told the doctor that I believed I was pregnant, and I asked if anything could be done, and he said he would help me.” Appellant Marinean told her she would have to pay $55. Thereupon the prosecutrix got the money from her husband and gave it to appellant Marinean. The prosecutrix then went into another room as directed and put on a surgical coat, then placed her

On October 6, 1941, Cora Elvin McMaster, a secretary for the Board of Medical Examiners of the State of California, telephoned the office of Dr. Henry Stevens in Hollywood, and in testifying at the trial herein, related the following phone conversation with a woman who gave her name as Miss Wilson, the name used by the appellant, Mabel Wilson Vremsak.

“I asked for Dr. Stevens, if Dr. Stevens was in, and she said no, and I asked if he would be in, and she said he would not, and she wanted to know if I was answering an ad or had been referred by someone. I told her I had been referred. And she wanted to know what I wanted to see him

Cloisea Harmon, a deputy sheriff of Los Angeles County, one of the investigating officers in the case, testified that she went to the office occupied by appellant Marineau shortly after noon on October 6, 1941, and upon her arrival was met by the appellant Vremsak. She went in in company with a Mr. Anderson, a special agent of the Board of Medical Examiners. Appellant Vremsak was told that Miss Harmon’s name was Miss Masters, the name used by Miss McMaster on the telephone, and that she had an appointment with the doctor. In a few minutes Miss Vremsak returned and told Miss Harmon to come in alone. Miss Harmon went through a small office into a treatment room and was told to undress. While Miss Harmon was undressing she asked Miss Vremsak if Dr. Stevens was there. Miss Vremsak stated that Dr. Marineau is “doing them now” and that Dr. Stevens had practically quit “doing them.” After Miss Harmon was placed on a table for examination, appellant Marineau came in and examined her. Before examining her appellant Marineau asked “What makes you think you are not pregnant?” Miss Harmon replied, “I didn’t tell you I wasn’t pregnant. I am pregnant.” Appellant examined her and then said, “Yes, you are eight weeks.” Miss Harmon testified that at the time of the examination she had not missed any of her menses. As soon as the examination was over Miss Harmon sat upright on the table with a sheet around her and Mr. Anderson and Deputies Carmack, Hutchinson and Bowers of

Various instruments and supplies taken from Dr. Marinean's office were identified and put in evidence. Included among the instruments was a forceps and a vaginal speculum. There was also a box of tampons with strings on them. The police surgeon testified that the instruments in evidence are those usually in a hospital where dilatation and curettage is performed. Dr. Hermann identified one of these instruments as a double curved forceps sometimes used to remove the contents of the uterus after the cervix is dilated.

The appellant Marinean took the stand in his own defense and testified regarding the several visits made by Miss Shirley, prosecutrix under count one, and stated that he was a chiropractor. He testified that he examined Miss Shirley for a vaginal discharge, and that the only instrument he used on her was a speculum, an instrument for vaginal examination. He denied using any instrument upon her with the intent or for the purpose of procuring a miscarriage. In reference to count two, appellant Marinean testified that Mrs. Stein, the prosecutrix, came in to see him and told him that she had missed a period; that she was in the habit of missing periods, but this time for some reason or other she felt rather strange and was suspicious of the fact that she might be pregnant. She also gave him a history of gall bladder trouble. Dr. Marinean testified that Mrs. Stein asked him how much it would cost for tests and treatment and that he was unable to give her the amonnt at the time; but that Mrs. Stein made a down payment of $55. Dr. Marinean stated that he made a bi-manual vaginal examination of Mrs. Stein; that he also inserted a vaginal speculum and took an ordinary dressing forceps and probed in the cervix to see if he could dislodge any disintegrated tissue cells, which he stated to be a common examination for patients that are suspected of cancer in the

The appellant Mabel Wilson Vremsak took the stand in her own defense and testified that she was employed by appellant Marinean as office assistant. She testified regarding the various visits of Miss Shirley to the office, admitted the visit of Miss Shirley with Dickson to appellant’s apartment, but explained it by saying that Miss Shirley was “embarrassed to talk to the doctor” and would rather talk to appellant Vremsak and asked if she could see appellant at her home. Appellant Vremsak also admitted taking Miss Shirley to appellant’s apartment on the occasion after Miss Shirley was treated, and explained the nurse’s going to Santa Monica with Miss Shirley by the following testimony: “ ... there was an acquaintance of mine dropped in and inquired about Dr. Dowley, a doctor that I used to work for, that had passed away—a former patient of his dropped by and asked me about him, and the conversation came up that she had friends in Santa Monica, and when she found out they were going to Santa Monica, she asked if she could go along with them; and what they did after that, I don’t know.” In reference to count two appellant Vremsak admitted that she acted as receptionist when Mrs. Stein came into the office hut stated she did not know what took place after that. On cross-examination appellant Vremsak admitted she was not a regis

The foregoing résumé of evidence is enough to show the sufficiency thereof and to dispose of all contentions relating thereto. Both appellants admitted their connection with the treatment of Miss Shirley; and the medical testimony, together with exhibits introduced and other circumstantial evidence, was sufficient to corroborate the testimony of any accomplice, even assuming the young man in question to have been an accomplice. As to count two, the evidence is equally sufficient and corroborative. Though appellant Vremsak was not present when Mrs. Stein was treated, her connection with appellant Marinean and the part appellant Vremsak was shown to have played in Dr. Marineau’s practice was sufficient to remove even the possibility of a doubt as to her guilt. An additional circumstance bearing upon the question of appellants’ guilt was the testimony as to their attempted flight at the time of their arrest.

As to evidence of other acts and offenses, the situation here presented is no different in principle from that in People v. Coltrin, 5 Cal.2d 649 [ 55 P.2d 1161 ], which case furnishes a complete answer to appellants’ contention in this respect, as well as to the contention regarding admission of the testimony of Miss Harmon, the deputy sheriff.

Appellants complain of the admission of testimony given by Miss Harmon as to statements made by a Mrs. Howard in the presence of appellants as to the treatment of Mrs. Howard by Dr. Marinean. This testimony was admitted for the limited purpose of showing an accusatory statement not denied by the defendants; and the jury was instructed as to the purpose for which such statements are admitted in evidence. The statement made by the woman in question was to the effect that she was about eight weeks pregnant and that she had made an appointment with Marineau’s associate for an operation; that she had paid $55 therefor to Dr. Mari

Appellants complain of an instruction given the jury which set forth the provisions of section 7 of the Chiropractic Act and section 11476 of the Health and Safety Code of California. Section 7 of the Chiropractic Act provides that the license to practice chiropractic in the State of California shall not authorize the practice of medicine, surgery, osteopathy, dentistry or optometry, nor the use of any drug or medicine now or hereafter included in materia medica. (Stats. 1923, p. xc; Deering’s Gen. Laws, 1937, Act 4811.) Section 11476 of the Health and Safety Code provides that no person other than a physician, dentist, osteopath, chiropodist, registered nurse, veterinarian, or pharmacist, shall have in his possession a hypodermic syringe or hypodermic needle, or any instrument or contrivance used for the same purpose, unless it was

Appellants contend that no such deduction could be made from such evidence. But possession of instruments and equipment enabling a defendant to perform an abortion is a circumstance which may be considered by a jury. (People v. Watanebe, 91 Cal.App. 290 , 293 [ 266 P. 1000 ].) “The surgical instruments were admissible in evidence as bearing upon the question of the intent with which the medicine was administered [cases cited]. Said instruments were found in appellant’s possession at the place where the crime is alleged to have been consummated; and despite the admitted fact that the miscarriage of the prosecutrix was sought to be accomplished by administering medicine, it may be fairly inferred from the testimony showing the nature of the instruments and the use to which they are put, that their use would have been probable in the subsequent treatment of the prosecutrix if she had continued to remain under appellant’s care.” (People v. Lee, 81 Cal.App. 49 , 54 [ 252 P. 763 ].) Appellant Marineau, as a chiropractor, was not authorized to use surgical instruments or hypodermic needles. The use of such instruments upon the persons he treated was properly considered in determining the intent with which those persons were treated, and the instruction of the court to that effect was correct.

Appellants complain of an instruction in which the court merely gave a definition of the term “chiropractic,” Appellants’ contention is that the giving of this instruction placed improper emphasis upon the fact that Dr. Marineau was a chiropractor. But the fact that Dr. Marineau was a chiropractor was a circumstance to be considered by the jury in

Appellants also contend that the trial court erred in admitting the testimony of the police officers regarding certain money found in appellant Marinean’s office, and with regard to other similar matters. However, the evidence already set out above was ample on which to convict appellants and a discussion of the materiality or immateriality of the testimony here referred to would serve no purpose, since appellants cannot be held to have been prejudiced by the same.

There appears on file herein a certified copy of an order of the superior court made August 28, 1942, exonerating the bond of defendant Vremsak on appeal, which order reads as follows: “It appearing to the court, from the certificate of death on file herein, that said defendant is dead and on motion of William G. Kenney, counsel for the Surety Company, the bond on appeal is exonerated.” However, the mere filing of a certified copy of such an order is not sufficient to constitute a suggestion of the death of the party, on which to abate the cause on appeal.

For the foregoing reasons the order denying the motions for a new trial and the judgments of conviction are affirmed.

York, P. J., and White, J., concurred.