WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HARRY G. HERSHENSON, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1957.
The defendants, James Kalpak and James E. Johnson, were jointly indicted for the crime of abortion by the grand jury of Cook County. Each defendant made a motion for a separate trial, which was denied, and to suppress certain evidence which police officers allegedly obtained by an unlawful search and seizure. Johnson's motion involved certain articles taken from his home, in his absence and without a search warrant; Kalpak's involved certain papers taken from his person at the time of his arrest. The court held a preliminary hearing, at which evidence was submitted, and thereupon denied both motions. The defendants were jointly tried and the jury returned separate verdicts finding each guilty as charged. After overruling their motions for a new trial, the court sentenced Kalpak to serve a term of not less than one year nor more than two years, and Johnson not less than two years nor more than seven years in the Illinois State Penitentiary. Each defendant sued out a separate writ of error to this court and the cases were consolidated for review.
The errors assigned and argued are: (1) that the evidence fails to prove the defendants guilty of abortion; (2) that the trial court erred in admitting certain evidence; (3) that the trial court erred in refusing an instruction tendered by the defendants; and (4) that error was committed in denying the motions to suppress.
Five witnesses testified for the People, and in addition, the testimony of Bernice Lewis, R. Robbins, and Dr. T.B. Horrell was introduced by stipulation. The defendants did not testify and presented one medical witness. The testimony on the motions to suppress and at the trial was repetitive, and will be summarized along with the other evidence, much of which is undisputed.
The record discloses that Dolores Bogan, age 27, had sexual relations with an unnamed man in June of 1954 and missed her July menstrual period. On July 27, 1954, she consulted her regular physician, Dr. John Kuzera, who advised her that she was pregnant. She was then in normal health, and Dr. Kuzera testified that an abortion was not necessary to preserve her life. After missing menstruation in August and September, Miss Bogan, on October 3, sought the aid of a friend whom she met at a Chicago tavern; after some conversation, he placed a telephone call, and she talked on the telephone with a man who gave his name as "Jimmy." She arranged to meet this man on the following day at a hamburger stand designated by him. She told him how she would be dressed, and the meeting took place as planned. The man identified himself as "Jimmy," and at the trial she identified him as the defendant Kalpak. After Kalpak made a telephone call, they went to her automobile. Kalpak drove. En route he told her it would cost $300, and asked if she had the money. On being advised that she had only $200 he told her she must have the additional $100 the next time. He also told her that the "Doc" they were going to see was a colored man. They stopped in front of a two-story brick house at 3630 S. Giles Avenue. Upon leaving the car, he asked for and received the $200. After verifying the house number from a card in his wallet, they both proceeded to the front door where Kalpak rang the bell. They were admitted by a man to whom Kalpak stated they were there to see "Doc." They then went up a flight of stairs to the second floor, where Miss Bogan saw a man whom she later identified as the defendant Johnson. Kalpak told Johnson: "This is the girl," and they entered a front room which was furnished with a day-bed, or cot, two chairs, a dresser and a desk.
Johnson asked her "how far gone" she was, and she replied three months. He told her to remove her undergarments and he and Kalpak left the room. Johnson returned and told her to lie on the cot which she did; he then put a sheet over her head, and again briefly left the room, returned and placed an extension light between the calves of her legs. In a few moments she suffered a tingling, burning feeling on the inner portion of her left leg; and she sustained a burn which left a scar on that part of her left leg, halfway between the ankle and knee. At the trial, she exhibited this mark to the jury. At the time, Johnson apologized for his inadvertence. After this she felt a cold metal object being inserted into her vagina, then a spreading sensation; then she experienced a sharp cutting in her female organs. Johnson then said he would pack her with cotton and she felt a pushing and then a contracting sensation as the metal object was withdrawn. When she had dressed, Johnson gave her a glass of milky substance, which she drank, and three pills, which he told her to take that night. He directed her to remove the cotton before retiring. As she and Kalpak were leaving, Johnson told Kalpak to bring her back on October 6, at the same time. After they returned to the hamburger stand, Kalpak told her to be sure to have the other $100 on October 6.
Miss Bogan met Kalpak on October 6, gave him $100 and they proceeded to 3630 S. Giles Avenue. When they arrived Johnson asked her if anything had happened; she said "No," and asked to use the bathroom. He directed her to a toilet down the hall where she saw a small porcelain pan, a long stick wrapped with tape and twine, and an instrument that "looked like two shoe horns." At the trial she identified these objects as People's exhibits 5, 6 and 7. On her return, Johnson gave her a treatment similar to that received on her first visit. He again covered her head with a sheet. On this occasion, however, she experienced more pain. Johnson told her not to go to a hospital if she got sick, and that if nothing happened in 2 or 3 days, she should call "Jimmy." Neither defendant, in her presence, referred to the other by any surname. On the return trip she asked Kalpak for his telephone number. He refused this information, and, instead, took her number and agreed to call her the following Sunday night, which he failed to do. She did not see him again until after his arrest on October 21.
On October 10, Miss Bogan's water bag, which enclosed the fetus, broke, and next day she began to experience severe cramping pains and became feverish and nauseated. She called, but could not reach, her physician, Dr. Kuzera. She contacted another physician who directed that she be taken to a hospital where she was admitted to the emergency room. There Dr. Kuzera examined her at about 3:30 P.M. He found that she had a high fever; that her uterus was enlarged and that there was a purulent, odoriferous discharge from the vaginal passage, all indicative of endometritis. He prescribed antibiotics, ice packs and bed rest.
On October 12 these pains continued, and on October 13 she expelled the fetus and placental tissue which was preserved for examination by the hospital pathologist, Dr. T.B. Horrell. He found that the specimen consisted of an irregular mass of placental tissue and a fetus showing early maceration; and that the section of the specimen prepared for microscopic examination showed colonies of cocci and bacilli within the placental tissue and in some of the areas of necrosis appearing in the fetus. Dr. Kuzera interpreted these findings by stating that what was to have been a human being showed infection and disintegration. It was his opinion, based on an examination of Miss Bogan on October 14, that it was not necessary that she have an abortion in order to preserve her life.
A policewoman assigned to the State's Attorney's office, talked to Dolores Bogan at the hospital on October 14. On October 18, Miss Bogan came to the Criminal Court Building where she talked to Irvin Lang, an assistant State's Attorney, and the policewoman. She described the Negro known as "Doc" as a man 65 to 70 years of age, medium brown to black, 6 feet or better in height, with large rough hands, and a noticeable protruding lower lip. The man known to her as "Jimmy" was described as a man about 25 years of age, weighing about 175 pounds, 5 feet 8 to 8 1/2 inches in height, with dark complexion and hair, and apparently of Italian or Greek extraction. Following the interview, separate "John Doe" warrants were obtained for the arrest of the two men. Officers William Norris, George Fors, and the policewoman, all working out of the State's Attorney's office, were assigned to the case. That same afternoon, officers Norris and Fors looked at the outside of the building at 3630 S. Giles, checked the city directory, and found that Mr. and Mrs. Rose, Mr. and Mrs. Williams, and James E. Johnson, were listed as living at that address. A telephone was listed under the exchange and number of Atlantic 5-5116.
The following day, officers Norris, Fors, and the policewoman met at the police garage at Eleventh and State streets, from which the policewoman placed a telephone call to Atlantic 5-5116. A lady answered the telephone and the officer asked for "Doc." When a man answered, she asked if he would be in his office. He replied, "Yes," and she told him she would be right out. The three officers then drove to the vicinity of 3630 S. Giles where all alighted from the police car. Norris and the policewoman walked to the front of the building, and Fors went to the rear. Norris rang the doorbell and he and the policewoman were admitted by a woman who was informed by the lady officer that she was there to see the doctor. The woman called up the stairway and a voice from above said: "Send them up." They proceeded upstairs and there found the defendant Johnson who answered the description given them. They entered Johnson's room and the policewoman asked to use the bathroom. While she was absent, Johnson asked Norris if the woman was his wife or girl friend, and how far along she was. Norris answered evasively. Johnson told Norris not to worry about a thing; that he would give her the same treatment he had given others; that he would give her some medicine to clean out her stomach and she could come back tomorrow and have the job done; that she might miscarry there, or it might take two or three days, but that she would "get rid of it somehow." He further stated that he had done thousands of jobs; that he took care of the show girls from Cicero; and that he had taken care of one Italian girl three times in the last two years. When the policewoman returned to the room Johnson asked her how far along she was. When she said nothing he told her to sit on the bed and he would find out. As he began to unbutton her blouse, she jumped up and ran behind Norris, stating that she was afraid, and didn't think she wanted anything done. Johnson told her not to worry; that he had done thousands of abortions and hadn't had any trouble; that he did it by opening the womb; and that his charge to them would be $75, paid in advance. At this point Norris produced his police badge and the warrant, and arrested Johnson, who then said: "I knew it. I knew it. You tricked me!" Norris asked him what part of the premises he rented or controlled. He replied that he used the room they were in and a closet just outside his door off the hall.
Officer Norris and the policewoman then took Johnson downstairs where they contacted officer Fors who was outside. Fors remained there and went up to Johnson's room. Johnson was taken to the State's Attorney's office, where Dolores Bogan identified him as the man called "Doc" who had treated her. Johnson denied ...