if defendant convicted of two offenses which are actually one, conviction of less severely punishable offense should be set aside
How later courts described this case
- if defendant convicted of two offenses which are actually one, conviction of less severely punishable offense should be set aside
Written by the judges who cited it.
The opinion
SHENK, J.
I dissent.
The precise question involved in this case was decided contrary to the contentions of the defendant by a unanimous court in People v. Coltrin, 5 Cal.2d 649 [ 55 P.2d 1161 ], and I can see no good reason or justification for overruling it. This court there construed the statute and the decision has been in effect for over 21 years. In the meantime the Legislature has not changed the law to conform to the views of the present majority of the court, which, contrary to the established law, now proceeds to legislate on the subject and thus to make it easier for a lawbreaker to escape the penalties of the law.
It is conceded that the defendant’s conduct as to Lucy Sanchez constituted a violation of both section 274 (abortion) and section 187 (murder) of the Penal Code. In the Coltrin case the defendant performed an illegal abortion which resulted in the death of the victim. He was convicted of both abortion and murder in the second degree. In affirming the judgment this court stated beginning at page 661: “ ‘The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only are these two offenses separate and distinct in a legal sense and each dependent upon evidence not required in the other, but as a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element. . . .’
“Certainly murder does not include abortion. Neither is the converse true. Death is by no means a necessary ingredient of abortion. There are classes of crime which have the same basic elements and a conviction or acquittal of one is a bar to a prosecution of the other. Assaults are of this class and a conviction of an assault with a deadly weapon *595 with intent to commit murder, made upon the same person and consisting of one act, bars a prosecution for an assault with a deadly weapon or assault.”
The court specifically considered section 654 of the Penal Code, relied upon by the court in the present case, as prohibiting punishment for both murder and abortion, and held it inapplicable for the reason that it had “no relevancy whatever to the proposition before us. It is not sought in this proceeding to punish abortion in any different way than the sole manner provided by section 274 of the Penal Code. . . . Murder and abortion are two distinct crimes and are not the same offenses, and there is no common basis upon which they must rest as the same offense.”
In 1949 this court also affirmed a judgment of conviction of abortion and manslaughter in a case where the offenses arose out of the death of the victim following her abortion. (People v. Powell, 34 Cal.2d 196 [ 208 P.2d 974 ]; see also People v. Gomez, 41 Cal.App.2d 249 [ 106 P.2d 214 ].)
I would affirm the judgment in its entirety.