People v. Pollum

Appellant Pollum, a chiropractor, and one Dr. Kirk were jointly indicted for four offenses of abortion, three of the subjects being married women and the fourth a single woman. Appellant was tried separately to a jury and was convicted on all counts. He was denied probation and sentenced to state prison. He appeals from the judgment and from an order denying his motion for a new trial. Pour grounds of appeal are urged: (1) Insufficiency of the evidence as to each count; (2) error in admission as exhibits of certain surgical instruments; (3) error in .the receipt of testimony of a physician as to alleged customary medical practices ; (4) prejudicial argument of the prosecutor with respect to appellant’s failure to testify.

The claim of insufficiency of the evidence relates to the testimony of the four women descriptive of the acts and statements of appellant and also to the testimony relied upon for corroboration. The evidence disclosed the following: The first woman was the mother of two children, 10 and 12 years of age. She was pregnant, had lost 15 pounds in weight, and was in an anemic condition. She had been advised by a physician, other than appellant, that she could not undergo a normal childbirth and that a Caesarean operation would be necessary. She believed this to be true and was greatly concerned about her health. Notwithstanding these facts she was

It is earnestly contended by appellant that there was insufficient evidence from which the jury could conclude that the abortion was not necessary to preserve life. We cannot agree that the evidence was legally insufficient.

The second woman testified she had missed one period and did not believe she was pregnant. She had consulted Dr. Kirk three or four weeks before she saw appellant as directed by Dr. Kirk. Her health was good. She was accompanied to appellant’s office by a man for whom she worked. He had not known appellant before that time. Both the man and the woman testified that the woman paid appellant $300 in cash and went into another room with him. The woman testified she was on an operating table 15 or 20 minutes and the man testified that in about 30 minutes she came out pale, nervous and almost hysterical. The woman’s testimony as to appellant’s acts was sufficient to prove the performance of an abortion. Al

The third woman did not want to have a baby because her husband was subject to epileptic fits. She testified she was in good health. A physician who had examined her testified she was pregnant and that no reason was discovered why she could not safely undergo a natural childbirth. She was accompanied to appellant’s office by her mother. The two women testified they arranged with appellant for an abortion and paid him $250. The testimony of the daughter was sufficient to prove the commission of the offense charged and was sufficiently corroborated by that of her mother.

The fourth woman was unmarried. She testified that she was pregnant but in good health. She was taken to appellant’s office one evening by Dr. Kirk where arrangements were made for an abortion. She paid no money to either of the men but promised to make payments each week until the fee was paid. According to her testimony Dr. Kirk administered an anesthetic; she became unconscious but recalled that at times she was screaming and crying. Her description of the acts performed by appellant in the presence of Dr. Kirk was sufficient to prove an attempt to procure a miscarriage. After the operation and while she was semiconscious she jumped off the operating table and ran out of the building into the street, completely nude except for her shoes. She ran across the street screaming, where she met persons who testified at the trial. Dr. Kirk and appellant followed her with a sheet which they wrapped around her. It had a splotch on it which resembled blood. A woman wrapped a coat around her; the police were called and the subject was taken to the police station accompanied by the doctors. Dr. Kirk brought the woman’s clothing and she dressed in the police station. She was in a highly emotional and incoherent state. The doctors were questioned and stated that the woman was undergoing

The surgical instruments above mentioned were received in evidence over the objection of appellant. It is claimed this was error inasmuch as they were found in appellant’s office more than a year after the times of the alleged offenses and were not shown to have been used by appellant upon any of the women. As already stated there was testimony that appellant admitted they belonged to him. There was also testimony that some of the women had been given hypodermic injections and that vaginal instruments of some sort had been used upon them. It is true that the discovery of the instruments in appellant’s office was remote as to time but we do not regard the case as one in which it was necessary in order to render them admissible that evidence should have been produced from which it could reasonably be inferred that they had some connection with the commission of the crime. (See People v. McCall, 10 Cal.App.2d 503 [ 52 P.2d 500 ].) If it had been necessary to produce such evidence in the present case there was a failure of such preliminary proof. But it was not necessary to connect the instruments with the commission of the acts charged to render them admissible in evidence. Possession of the instruments was evidence that defendant’s office was equipped for the performance of operations of the nature described by the witnesses. The testimony was that the cervical dilator was used only in surgery and is usually

Dr. Ethel Margaret Hamilton, a physician and gynecologist, testified for the People. She stated her qualifications, which were not questioned by counsel for appellant in the first instance. She was the physician who examined the third woman, found she was pregnant, and expressed the opinion that she could undergo a natural childbirth. She was questioned by the People as follows: “What procedure is followed in performing such an operation, that is, one where it is necessary to preserve life. ’ ’ The question was objected to and the witness answered: “The patient is hospitalized for the 24 hours before the dilatation and curettage is performed and is seen by two practicing physicians which are on a definite committee appointed by the hospital staff. These two physicians see the patient and determine by examination whether or not they feel the patient can go through with pregnancy or whether the pregnancy should be interrupted.” A motion to strike the answer was made and the court stated “I think it is proper to show what the regular medical practice is in the

The People seek to justify the admission of this testimony upon the ground that the question involved was the same as in a malpractice action, namely, whether the treatment administered was in accordance with the standard practice of reputable physicians in the community. It was not the same. No question of knowledge, judgment, skill or care was involved. The court instructed: “An abortion is legal only when it is apparently necessary to save the life of the woman” (emphasis added). It may be presumed that the jury, because of the instruction, would have acquitted appellant if it had determined the evidence to be insufficient to prove want of apparent necessity. If the jury accepted the testimony of Dr. Hamilton that doctors performing abortions in order to preserve life first receive the advice of two doctors appointed by a hospital staff, it would have weighed heavily against appellant. The concurring opinions and advice of two physicians, appointed for that purpose, are deemed essential to prove necessity to preserve life, and the absence of such advice is evidence of

Appellant’s contention in this connection relates only to the case of the first woman, who described her condition to appellant and stated she was fearful for her life. The uncontradicted evidence was that the other women were in good health. (See People v. Malone, 82 Cal.App.2d 54 [ 185 P.2d 870 ].) We are of the opinion that the testimony concerning the described practices was prejudicial as to the first count.

The final contention is that improper comment was made by the prosecutor upon the failure of appellant to testify in his own behalf. The following statements were made during argument: ‘ The defendant has not got on this witness stand here to explain or deny any of this evidence that has been piled up against him. The People’s case stands absolutely uncontradicted in any way-“Now, the defendant has seen fit to exercise his right under the Constitution to stay off of that witness stand and tell us or explain to us or make any of these denials.” “Mb. Bowler: You know, ladies and gentlemen, in the olden days when the. law was young, the defendant didn’t have the right to get on that witness stand and explain the evidence that was within his knowledge or to contradict those who appeared against him. ” “ Mr. Bowler : Ladies and gentlemen of the jury, as I said before, that used to be the law. Now, in the present day the defendant has two rights. Under the Constitution he has the right to stay off of that stand and not testify, and he likewise has the right to get on that stand and deny these accusations against him and explain the evidence that appears against him. He has seen fit not to do that. Now, which of those two rights are more valuable-.” “Mr. Bowler: Which of those two rights is more valuable? If a defendant were innocent, I would say that the right to get on that stand would be the more valuable right, to get on that stand and deny, and have the privilege of explaining evidence that appears against him in any particular ease.” “Mr. Bowler: He has placed on your shoulders, ladies and gentlemen of this jury—he has placed on each and every one of you the burden and the responsibility of finding an explanation for the matters that these women have testified about in this case.” “Mr. Bowler: Who knows better what took place out there—who knows better as to what happened to

The foregoing argument was interspersed with objections by the defense and assignments of prejudicial misconduct, all of which were overruled. The court instructed the jury as to the significance of the failure of the defendant to explain or deny adverse testimony as to matters concerning which he would have had knowledge. The instruction was substantially in the language used by the court in People v. Adamson, 27 Cal.2d 478 , 490 [ 165 P.2d 3 ], with respect to the consideration that should be given to the failure of the accused to explain or deny such evidence. There was no assertion by the prosecutor, as there was in People v. Pianezzi, 42 Cal.App.2d 265 , 268 [ 108 P.2d 732 ], that the failure to testify was tantamount to an admission of guilt, which assertion, although approved by the District Court of Appeal, was subsequently disapproved by the court in the Adamson case. Neither was there an assertion that the failure of appellant to testify justified an inference or raised a presumption of guilt. The argument was to the effect that such failure warranted the jury in according more weight to the evidence of the prosecution because the testimony as to the conduct of appellant stood uncontradicted. It would seem reasonable to suppose that in following the court’s instruction the jury would not have given less effect to the failure of defendant to testify than was suggested by the remarks of the prosecutor.

The judgment and order denying a new trial are reversed as to the first count of the indictment, and affirmed as to the remaining, counts.

Wood, J., and Vallée, J., concurred.

A petition for a rehearing was denied May 10, 1950.