People v. Buffum

Supreme Court of California

The People, Respondent,
v.
Roy L. Buffum et al., Appellants.

In Bank. April 20, 1953
Crim. No. 5293 . . .

Gibson, C.J.

Roy L. Buffum, a physician and surgeon, and Reginald L. Rankin were indicted for and convicted of violating section 182 of the Penal Code in that they conspired to use certain means to induce miscarriages contrary to section 274. Defendants appeal from the judgments and from an order denying their motions for a new trial.

Four women who were pregnant went separately to the office of Buffum in Long Beach to solicit his aid in inducing miscarriages. One of the women was accompanied by her mother. Buffum refused to perform the abortions but took the telephone numbers of three of the women and told each she would receive a call. Rankin later telephoned them, told them the amount they must pay, arranged to meet them at a designated intersection in Long Beach, and indicated that he would transport them to the place where the abortions were to be performed. Buffum gave Rankin's telephone number to the fourth woman, and she called Rankin and made similar arrangements.

Rankin met the women at the appointed place and drove them in his automobile to Tijuana, Mexico. There, with the assistance of Rankin, another man performed an operation upon each of them. While in the operating room, three of the women gave money to Rankin. Later the same day Rankin returned the women to Long Beach, where they again went their separate ways. Subsequently three of them required hospitalization. Buffum treated one of them without preliminary examination or inquiry as to the nature of her illness, and reimbursed her family for the hospital bill.

The principal questions raised on this appeal are: (1) Can the convictions be supported on a showing that defendants conspired in California to perform abortions in Mexico? (2) Did the court err in admitting proof of the law of Mexico on abortions? (3) Is the evidence sufficient to support a finding that defendants conspired in California to perform abortions in this state? (4) Did the court err in failing to instruct upon the necessity for corroboration?

Conspiracy to Perform Abortions in Mexico

A conspiracy may be established by showing that there was an agreement between two or more persons to commit a crime and that an act was done in California to effect the object of the agreement. (Pen. Code, §§ 182, 184; see People v. Daener, 96 Cal. App. 2d 827, 831 [216 P.2d 511]; People v. Benenato, 77 Cal. App. 2d 350, 358 [175 P.2d 296]; People v. Huling, 71 Cal. App. 144, 146 [234 P. 924].) The object of defendants' agreement, as alleged in the indictment, was "to violate section 274, Penal Code of the State of California." No other unlawful purpose was stated, and defendants, of course, cannot be punished for conspiracy unless the doing of the things agreed upon would amount to a violation of section 274. The statute makes no reference to the place of performance of an abortion, and we must assume that the Legislature did not intend to regulate conduct taking place outside the borders of the state. (See People v. Chapman, 55 Cal. App. 192, 197 [203 P. 126]; Foley Bros. v. Filardo, 336 U.S. 281, 284-286 [69 S. Ct. 575, 93 L. Ed. 680]; American Banana Co. v. United Fruit Co., 213 U.S. 347, 356-357 [29 S. Ct. 511, 53 L. Ed. 826].) Similarly, section 182 of the Penal Code, standing alone, should not be read as applying to a conspiracy to commit a crime in another jurisdiction.

The People rely upon subdivision 1 of section 27 of the Penal Code, which provides that persons may be punished "under the laws of this state" if they "commit, in whole or in part, any crime within this state," and also upon section 778a of that code, which provides: "Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of such intent, which culminates in the commission of a crime, either within or without this state such person is punishable for such crime in this state in the same manner as if the same had been committed entirely within this state." These sections were not mentioned in the indictment, but if it be assumed that they may properly be considered here, they do not authorize a conviction on the evidence presented. The statutes must be construed in the light of the general principle that, ordinarily, a state does not impose punishment for acts done outside its territory. (See People v. McGowan, 127 Cal. App. 39, 42 [14 P.2d 1036]; State v. Volpe, 113 Conn. 288 [155 A. 223, 226, 76 A.L.R. 1083]; Rest., Conflict of Laws, §§ 425, 427.) . . .

The questions presented here are different from those arising in venue cases. In People v. Anderson, 90 Cal. App. 2d 326, 330-331 [202 P.2d 1044], it was held that the defendants, who were prosecuted for abortion and conspiracy to commit abortion, could properly be tried in the county where the conspiracy was formed and from which they transported one of the women involved, even though the abortions were performed in another county. Sections 182 and 184 of the Penal Code, however, specifically provide that a conspiracy case may be tried in any county where an overt act is done. The Anderson case also relied on section 781 of the Penal Code, relating to venue where acts occur in two or more counties, but under this section venue may lie in a particular county even though the acts done there are not sufficient, considered alone, to constitute an attempt. (See People v. Megladdery, 40 Cal. App. 2d 748, 774-777 [106 P.2d 84].) Moreover, the courts, in construing the venue statutes, obviously are not limited by the operation of the general principles, discussed above, that a state ordinarily does not impose punishment for acts done in other jurisdictions and that, in the absence of a contrary intent, its statutes will not be read as seeking to regulate conduct beyond its own borders. . . .

It follows that the judgments cannot be sustained upon the showing that defendants agreed to transport the four women from California to Mexico and perform the abortions there because our statutes do not provide a criminal penalty for such conduct. Instructions to this effect requested by defendants were refused, and since no instructions were given on the subject, the ruling was erroneous. 

Proof of Mexican Law

The prosecution was permitted to prove, over objection, that the Penal Code of Mexico provides that anyone who causes a woman to abort, unless she is in danger of death, will be sentenced to prison, and that a doctor who commits such an offense will, in addition, be suspended from exercising his profession. Admission of this evidence was clearly erroneous. As we have seen, the charge was not conspiracy to violate Mexican law, but, rather, conspiracy to violate the law of California, and it was not proper for the prosecution to prove that defendants' activities in Mexico were punishable under the laws of that country. The placing of such a criminal label on the acts done in Mexico obviously made defendants' position more unfavorable in the minds of the jurors and may have led them to believe that defendants could be convicted upon the basis of Mexican law instead of upon the charge in the indictment. In this connection it should be noted that the court refused to give instructions requested by defendants which in substance would have told the jury that defendants could not be prosecuted in California for a violation of the law of Mexico, and that, even though they may have conspired to commit an act declared by the laws of that country to be unlawful, they should be acquitted if they did not intend to do any act or accomplish any criminal purpose in California.

Conspiracy to Perform Abortions in California

There is evidence which might, under proper instructions, support a conviction upon the theory that defendants conspired to perform abortions in California. In a telephone conversation Rankin told one of the women that they "were going to San Diego for the operation" and that they were going there "because it was too warm in Long Beach, the heat was on." He told another of the women that he was taking three women to San Diego and that she could go with them if she had $250. Still another of the women was told by Buffum that, if she used the telephone number he gave her, someone would take her to San Diego. Buffum told the arresting officer that the first time he knew that Rankin was taking the women to Tijuana was after the trip, although he "knew they were going somewhere down that way."

The evidence meets the requirement of section 184 of the Penal Code that some act, other than the making of the agreement, must be done in California to effect the object of the conspiracy. Buffum gave Rankin the telephone numbers of three of the women and gave Rankin's number to the fourth one. Rankin talked to each of them, quoted prices for the termination of their pregnancies and said that he would take them to a place where the operations would be performed. Thereafter he met the women and transported them over California highways for the purpose of taking them to such place. Under this evidence, if the agreement was to have abortions performed in California, an offense was completed when the agreement was followed by the acts in this state (Pen. Code, §§ 182, 184), and the subsequent transportation of the women across the border into Mexico for performance of the abortions did not operate to nullify the acts which had already been done in California. The events which took place in Tijuana were, of course, relevant to show that the object of the conspiracy was the use of instruments and other means with intent to procure miscarriages, and evidence thereof was properly admitted for this purpose.

Necessity for Instructions on Corroboration

The trial court refused to instruct that the four women were accomplices of defendants and that their testimony required corroboration under section 1111 of the Penal Code, and it failed to instruct on section 1108, which provides that in a trial for procuring or attempting to procure an abortion the testimony of the woman upon whom the offense was committed must be corroborated. If the four women come within either of these provisions, their testimony requires corroboration, and an appropriate instruction should have been given.

In a closely analogous case involving section 1111 it was held that a woman who submits to an abortion is not an accomplice of a person who is charged with a violation of section 274 of the Penal Code. (People v. Clapp, 24 Cal. 2d 835, 836 et seq. [151 P.2d 237].) The only difference between that case and the present one, with regard to the problem which we are now considering, is that here the defendants are charged with conspiracy to violate section 274 rather than with actual violation of that statute. The rule of People v. Clapp has been applied in at least one conspiracy case (People v. Stone, 89 Cal. App. 2d 853, 869-870 [202 P.2d 333]) and possibly in another (People v. Miner, 96 Cal. App. 2d 43, 53 [214 P.2d 557]). Defendants assert that these decisions are erroneous, and they argue that a woman who submits to an abortion, even though not an accomplice insofar as concerns an actual violation of section 274, is nevertheless a co-conspirator with the person who performs the abortion, that both are subject to prosecution for the identical offense of conspiracy to violate section 274, and that they are, therefore, accomplices within the meaning of section 1111. In order to pass upon this question we must examine the reasoning followed in the Clapp case and determine whether it is applicable here.

The Penal Code contains two separate provisions which punish persons who participate in abortions, namely, section 274, which, as we have seen, relates to the conduct of persons other than the pregnant woman, and section 275, which concerns only the acts of the woman. The Clapp case held that these statutes, construed together, disclose a legislative intent to subject the woman to punishment under section 275 but not under the distinct offense set forth by section 274 and that the specific provision in section 275 supersedes the general provision in section 31 that all persons who aid and abet in the commission of an offense are principals in any crime so committed. Although section 31, if considered alone, would by its terms render the woman punishable as a principal for the crime described by section 274, the court concluded that section 275 prevented such an application of section 31 and that the woman was therefore not subject to prosecution as a principal under section 274 and was not an accomplice of persons who were charged only with violating section 274. (24 Cal.2d at pp. 838-839; see, also, People v. Wilson, 25 Cal. 2d 341, 346 [153 P.2d 720].)

Section 182 of the Penal Code, which proscribes conspiracy to commit a crime, is closely analogous to section 31. Both provisions operate generally with respect to crimes defined in other statutes, and both designate persons who may be punished because of their connection with activities pertaining to such crimes. In our opinion the same reasoning which precludes the application of section 31 for the purpose of prosecuting a woman as a principal under section 274 likewise precludes the use of section 182 in prosecuting her for conspiracy to violate section 274. Since, as held in the Clapp case, the Legislature has expressed an intent that a woman who consents and voluntarily submits to an abortion is not punishable under section 274, it clearly did not intend that she should be punished for conspiracy to violate that statute. Although the language of section 182, standing alone, is sufficiently broad to include any agreement to procure an abortion, the provision, like that in section 31, is general and must yield to the specific provision in section 275. Any other construction would mean that the conspiracy law could be used as a device for defeating the legislative intention of imposing a lesser penalty on a woman who violates section 275 than is prescribed for a person convicted under section 274.

There are many cases arising under other statutes in which it has been recognized that a defendant may be liable to prosecution for conspiracy to commit a given crime even though he is incapable of committing the crime itself. (See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-225 [footnote] [60 S. Ct. 811, 84 L. Ed. 1129]; United States v. Rabinowich, 238 U.S. 78, 86 [35 S. Ct. 682, 59 L. Ed. 1211]; People v. Wood, 145 Cal. 659, 664-665 [79 P. 367]; see also cases collected in annotations in 131 A.L.R. 1322, 1327-1329; 74 A.L.R. 1110, 1114-1115; 5 A.L.R. 782, 787- 791.) This rule, however, does not apply where the statutes defining the substantive offense disclose an affirmative legislative policy that the conduct of one of the parties involved shall be unpunished. (Gebardi v. United States, 287 U.S. 112, 121-123 [53 S. Ct. 35, 77 L. Ed. 206, 84 A.L.R. 370]; In re Vince, 2 N.J. 443 [67 A.2d 141, 145]; see Pinkerton v. United States, 328 U.S. 640, 643 [66 S. Ct. 1180, 90 L. Ed. 1489]; State v. McLaughlin, 132 Conn. 325 [44 A.2d 116, 120-121].) Similarly, the rule should not be applied where, as here, the Legislature singles out one of the parties for special treatment by enacting a statute which deals only with the conduct of that person and provides for a lesser punishment than is given to the other party. In some states it has been held that the extrajudicial statements of a woman who solicits and submits to an abortion are admissible against the person who performs it upon the theory that the woman is guilty of conspiracy, but these cases are not helpful here because they do not discuss or show whether, in those jurisdictions, the woman is subject to prosecution as a principal or as an accomplice of the person who committed the abortion. (See State v. Mattson, 53 N.D. 486 [206 N.W. 778]; State v. Timm, 244 Wis. 508 [12 N.W.2d 670, 673-674]; Kraut v. State, 228 Wis. 386 [280 N.W. 327, 332- 333].) A few courts have declared that she is guilty of conspiracy even though she cannot be punished as an accomplice. (See United States v. Holte, 236 U.S. 140, 145 [35 S. Ct. 271, 59 L. Ed. 504]; Solander v. People, 2 Colo. 48, 62-63; Johnson v. People, 33 Colo. 224 [80 P. 133, 137-138, 108 Am.St.Rep. 85]; State v. Crofford, 133 Iowa 478 [110 N.W. 921, 922, 924-925]; Fields v. State, 107 Neb. 91 [185 N.W. 400, 403].) These cases are not persuasive, however, since they do not discuss the factors which we have considered here and which were noted in People v. Clapp, supra, 24 Cal. 2d 835, 838-839. The Supreme Court of Minnesota, in holding under statutes similar to ours that the woman who submits to an abortion is not an accomplice, has also said that she is not a conspirator. (See State v. Tennyson, 212 Minn. 158 [2 N.W.2d 833, 837, 139 A.L.R. 987].)

It follows from the foregoing that the four women involved here were not subject to prosecution for conspiracy to violate section 274 and that none of them was an accomplice within the meaning of section 1111. It likewise follows that, since these women were not accomplices, their testimony does not fall within the rule that the testimony of one accomplice cannot corroborate that of another, and, accordingly, the women could properly corroborate any witness who was an accomplice. (People v. Wilson, 25 Cal. 2d 341, 346 [153 P.2d 720]; see People v. Clapp, 24 Cal. 2d 835, 837 [151 P.2d 237].)

A different problem, however, is presented by section 1108 of the Penal Code, which, as we have seen, provides that upon "a trial for procuring or attempting to procure an abortion, or aiding or assisting therein," the testimony of the woman upon whom the offense was committed must be corroborated. While it is true that this section does not specifically refer to a conspiracy to procure an abortion, the language is very broad and, in our opinion, should be construed to embrace the crime charged in the present indictment. It is apparent that the purpose of the Legislature was to provide a safeguard against the danger that the testimony of the woman who submitted to and willingly participated in the abortion may be colored in expectation of immunity or may be otherwise untrustworthy. This purpose is just as applicable where the defendant is charged with conspiracy to commit an abortion as it is where he is charged with committing or attempting to commit an abortion, and it would be incongruous to interpret section 1108 as intended to deny the safeguard in one situation but to require it in the other. Moreover, such an interpretation would make it possible for the prosecution to circumvent the purpose of the section in many cases by the simple expedient of charging the defendant with conspiracy rather than with the substantive offense itself. 

Defendants did not request an instruction based upon section 1108. In a criminal case, however, the trial judge is required to instruct the jury of his own motion upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence. (People v. Putnam, 20 Cal. 2d 885, 890 [129 P.2d 367]; see also People v. Bender, 27 Cal. 2d 164, 176 [163 P.2d 8]; People v. Warren, 16 Cal. 2d 103, 116 [104 P.2d 1024]; People v. Scofield, 203 Cal. 703, 709 [265 P. 914].) Under this rule it has been held that, in an appropriate case, the jury must be instructed as to sections 1110 and 1111 of the Penal Code, which, like section 1108, provide that the testimony of certain witnesses must be corroborated. (People v. Warren, supra; People v. Heddens, 12 Cal. App. 2d 245, 247 [55 P.2d 230]; People v. Curran, 24 Cal. App. 2d 673, 676 [75 P.2d 1090]; see People v. Putnam, supra, at pp. 890-891 of 20 Cal.2d.) It follows, therefore, that the trial court erred in failing to give an instruction on its own motion with respect to section 1108. 

In addition to the four women who submitted to abortions, the mother of one of them likewise testified concerning some of the events which took place in Buffum's office. There is evidence that she was an accomplice within the meaning of section 1111 of the Penal Code, and, therefore, it was error for the court to refuse an instruction that the testimony of an accomplice must be corroborated. The conduct of this witness does not fall within the prohibition of section 275 of the Penal Code, and for this reason the rule of People v. Clapp discussed above has no application to her and cannot serve to prevent sections 31 and 182 from operating so as to render her liable to prosecution as a principal under section 274 or as a member of a conspiracy to violate that section. (See People v. Wilson, 25 Cal. 2d 341, 346 [153 P.2d 720] [discussing husband who took wife to defendant for abortion].) The witness testified that she accompanied her daughter to Buffum's office, told Buffum that the daughter was pregnant, asked Buffum if he could "help" them, talked to Buffum about whether "it could be done" in Los Angeles County, and asked how much it would cost. During this meeting most of the discussion was between the mother and Buffum, and the daughter said very little. There is no evidence that the mother then knew that Rankin was to take part in performance of the abortion, but the daughter testified that during the conversation between Buffum and the mother, Buffum said: "A man will call you tomorrow." The foregoing testimony is sufficient to show that the mother was an active participant in making arrangements with Buffum for the abortion and that she knew that at least one other man would be involved. It is, of course, unnecessary that each conspirator see the others or know who all the members of the conspiracy are. (Anderson v. Superior Court, 78 Cal. App. 2d 22, 23-25 [177 P.2d 315]; see Blumenthal v. United States, 332 U.S. 539, 556-557 [68 S. Ct. 248, 92 L. Ed. 154]; Lefco v. United States, 74 F.2d 66, 68-69.) It is likewise unnecessary that each conspirator participate in the overt acts. (People v. McNamara, 103 Cal. App. 2d 729, 741 [230 P.2d 411]; People v. Garrison, 80 Cal. App. 2d 458, 463 [181 P.2d 738]; People v. Benenato, 77 Cal. App. 2d 350, 356 [175 P.2d 296]; People v. Corica, 55 Cal. App. 2d 130, 135 [130 P.2d 164].) Accordingly, it could be concluded that the mother was a conspirator subject to prosecution for the offense charged in the indictment and therefore was an accomplice within the meaning of section 1111.

Do the Errors Require a Reversal of the Judgments?

The only basis upon which the judgments could be affirmed is that there was a conspiracy to violate the law of California by performing abortions in this state, and, as we have seen, there is evidence which might, under proper instructions, support convictions on this theory. However, the case apparently was tried on the theory that defendants could be convicted upon a showing that they agreed to and did transport the women from California to Mexico for the purpose of having abortions performed in that country. There is ample evidence that this was the plan agreed and acted upon by defendants, but our statutes do not provide a punishment for such conduct. The court erred in refusing to instruct the jury on this subject and in receiving proof of the law of Mexico. These errors may well have confused the jurors and led them to believe that defendants could be convicted if they agreed to perform the operations in Mexico or if they conspired to violate the law of that country instead of section 274 of the Penal Code as charged in the indictment. Further, as we have seen, the court erred in failing to instruct upon the necessity for corroboration. It is clear that without the testimony of the mother and the four other women it would have been difficult, if not impossible to convict defendants, and the jury, if properly instructed, might have disregarded their testimony. (See People v. Wallin, 32 Cal. 2d 803, 809 [197 P.2d 734]; People v. Warren, 16 Cal. 2d 103, 117-119 [104 P.2d 1024]; People v. Papajohn, 25 Cal. App. 2d 193, 195 [76 P.2d 708]; People v. Coakley, 108 Cal. App. 2d 223, 226-229 [238 P.2d 633].) In our opinion, the cumulative effect of the errors requires reversal of the judgments.

The judgments and the order denying motions for a new trial are reversed. . . .