Petition for A Writ of Certiorari — Brown v. United States (No. 715)

JAN 25 1957

In THe

Supreme Court of the United States

Octoper Term, 1956

No. €15

Scuiey Brown, Petitioner

vs.

Unirep Srates or America, Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

Curtis P. MrrcHe.i

Joun A. SHorrer, Jr.

Counselor for Petitioner

508 Fifth Street, N. W.

Washington 1, D. C.

Printed by Action Printing Co., 518 Fifth St., N. W.

| JOHN T. PEY, Clerk

Ce ee te aa ney

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OS AAG ONIC PF CHET *

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POEL ISS CLE

INDEX

Subject Index

Page

Petition for Writ of Certiorari 1

Opinions Below 2

Jurisdiction 2

Questions Presented 2

Statutes Involved 3

Statement of the Case 4

Reasons for Allowing the Writ ___ : |

Argument __ 8

NN scasinpiescsccitcnanmtciocnne 18

Table of Cases

Burcham v. United States, 163 F.2d. 761 10

Burge v. United States, 26 App. D. C. 524, p. 402, 404 _.___--16, 17

Gapion v. Com. 196 S. W.2d. 744, 302 Ky. 867 9

Garner v. State (1921) 57 So. 502, 3 Ala. App. 161 . 13

Goodall v. United States, 180 F.2d. 397 10

Hubby v. United States, 150 F.2d. 165 17

Lemke v. U. S. 211 F.2d. 73 9

Malaga v. U. S. (1932) 1 Cir. 57 F.2d. 822 13

Marcus v. U. S. 86 F.2d. 854, 859 10

Martin v. U. S. 75 U. S. App. D. C. 399 at p. 403 15

Martin v. U. S. 75 App. D. C. 399, 127 F.2d. 865 16

Novy v. State (1911) 138 S. W. 139, 62 Tex. Cr. R. 492 00 = ==-s—ssd

People v. Cosad, Supra 9

People v. Molineus, 168 N. Y. 264, 298 61 N. E. 286 17

Railton v. U. S. 127 F.2d. 691 18 :

Randle v. State, 1882, 12 Tex. Cir. 250 12

Simpson v. U. S. 195 F.2d. 731 10

i

Small v. U. S. 153 F.2d. 144

Sparf v. U. S. 156 U. S. 51

State v. Baker, 276 S. W. 2d. 131

State v. Berkendorf (1932) 10 P.2d. 1073, 1075

State v. Reed (1907) 81 N. E. 571, 168 Ind. 588

United Staves v. Baker, 129 F. Supp. 684

United States v. Byers (1934) 2nd. Cir. 73 F.2d. 419 —.

United States v. Klass, 166 F.2d. 373

Walker v. United States (1939) A. Cir. 104 F.2d. 456

Whiteman v. State (1928) 119 Ohio St. 285, 164 N. E. 51, 63 A. L. R.

595

Table of Statutes

Title 22, Section 201, D. C. Code, 1951 Edition Supp. IV (1955) —.

Constitution

Fifth Amendment

Miscellaneous Citations

14 Am. Jur. 813

Ballentine Law Dictionary 2nd. Ed.

Burdick, Law of Crime Vol. 1, Ch. 22 C. J. S. 137

Wharton’s Criminal Law, lith Ed. Vol. 1, p. 268, supra. p. 1059 ___

Wigmore on Evidence (3rd Ed. 1940) Sect. 304

In THE

Supreme Court of the United States

Ocroser Term, 1956

No.

Scutey Brown, Petitioner

vs.

Untrep States or America, Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

To: The Honorable The Chief Justice of the United States

and The Honorable Associate Justices of the Supreme

Court of The United States.

The petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the District of Columbia Circuit entered

November 29, 1956, affirming the judgment of conviction

—— — SE OT Ag NEA PRT ASRS REE ER i aaa a to

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2

that was entered by the United States District Court for

the District of Columbia against the petitioner for violation

of the abortion statute. (67 Stat. 93, Ch. 159 sec. 203, D. C.

Code, Supp. IV (1955) Section 2-201).

OPINIONS BELOW

There was no opinion in the United States District Court

for the District of Columbia.

The opinion of the United States Court of Appeals

rendered November 29, 1956, is not yet reported but is

contained in the certified transcript of record submitted

herewith and is appended to this petition. (R. 140)

On December 14, 1956, the petitioner filed a petition in

the Court of Appeals for a rehearing en bane. (R. 142)

This petition was denied by the Court of Appeals on Decem-

ber 26, 1956. (R. 152)

JURISDICTION

The judgment of the United States Court of Appeals

- for the District of Columbia Circuit sought to be reviewed

was dated and entered December 14, 1956. (R. 148)

The petition for re-hearing (R. 142) was denied December

26, 1956. (R. 152)

The jurisdiction of this Court is invoked under Section

1254 of Title 28 of the United States Code and Rule 37

(b) of the Federal Rules of Criminal Procedure.

QUESTIONS PRESENTED

1. Ina trial upon an indictment that charges the violation

of an abortion statute by the sole method of procuring or

producing an abortion, is it a denial of due process of law

for the court to instruct the jury that a guilty verdict

could be returned if they found that the accused had at-

tempted to procure or produce an abortion, where: (1) the

attempt is another method of violating the statute; and (2)

where the indictment did not charge an attempt to procure

3

or produce an abortion; and, (3) where there was no evi-

dence to support such an instruction.

2. In a prosecution for the commission of an abortion, ;

have the rights of an accused to a fair and impartial trial

and to due process of law been prejudiced, where the court

admits into evidence testimony that the accused had entered

into an agreement with others whereby the accused was to

send patients to a house, if the nature of the agreement is

indefinite and if the evidence has no probative value.

STATUTES INVOLVED

Title 22, Section 201, D. C. Code, 1951 Edition, Supp.

IV. (1955) :

‘‘Whoever, by means of any instrument medicine,

drug, or other means whatever, procures or produces,

or attempts to procure or produce an abortion or mis-

carriage on any woman, unless the same were done as

necessary for the preservation of the mother’s life

or health and under the direction of a competent li-

censed practitioner of medicine, shall be imprisoned

in the penitentiary not less than one year or not more

than ten years; or if the death of the mother results

therefrom, the person procuring or producing or at-

tempting to procure or produce the abortion or mis-

carriage shall be guilty of second degree murder.’’

(Mar. 3, 1901, 31 Stat. 1322, ch. 854, See. 809; June

29, 1953, 67 Stat. 93, ch. 159 See. 203)

UNITED STATES CONSTITUTION

Fifth Amendment to the Constitution:

No person shall be held to answer for a capital or

otherwise infamous crime unless a presentment or in-

dictment of a grand jury except in cases arising in the

land or naval forces or in the militia when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

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be deprived of life, liberty, or property without due

process of law; nor shall private property be taken for

public use without just compensation.

STATEMENT OF THE CASE

The petitioner, Schley Brown, was charged in a one count

indictment with that on or about September 1, 1955, he

procured or produced an abortion and miscarriage of one

Sylvia J. Stephenson:* (R. 1) He was arraigned in the

United States District Court for the District of Columbia,

and pleaded not guilty. (R. 2)

The charge against the petitioner was tried by a jury in

the United States District Court for the District of Co-

lumbia. (R. 6) The petitioner’s defense was that he did

not commit the alleged offense and that at the time of the

alleged commission thereof he was not in Washington,

D. C. (R. 111-119) The two principal witnesses called by

the government to prove the charge were: Miss Sylvia J.

Stephenson, the complainant, and her friend, one Arthur

Ted Leon.’

During the course of their testimony, these two witnesses

related in substance the following facts concerning the

alleged offense: In the month of June, 1955, Miss Stephen-

son said that she failed \9 have her regular monthly men-

strual period. (R. 8) After again missing her menses in

July, she contacted Mr. Leon; they discussed the matter

and it was decided between them to seek the advice of a

doctor. An appointment was made with a Dr. Robert Syme

of Alexandria, Virginia.

In the early part of August, upon her second visit to Dr.

Syme, he advised her that sbe was two months pregnant.

(R. 31)

* Violation or 67 Stat. 93, Ch. 159, Section 203, D. C. Code Supp. IV (1955)

Sec. 22-201.

*It was established at the trial that Miss Stephenson and Mr. J.eon had had

an affair that had lasted for a time until May, 1955.

5

The further testimony was that on the morning of August

27, 1955, Miss Stephenson and Mr. Leon went to petitioner’s

office. (R. 31) Mr. Leon said that after arriving at the

petitioner’s office, he went into the petitioner’s private

office and there they had a short conversation in which he

asked the petitioner to perform an abortion on Miss

Stephenson; to which according to him, the petitioner

agreed, and said that it would cost $300.00 Allegedly, the

petitioner also told Mr. Leon that for $50.00 extra Miss

Stephenson could go to a home in Georgetown and wait

for the operation to take effect and there recuperate for

a few days.

Mr. Leon and Miss Stephenson testified that on September

1, 1955, they went to a bank in Washington, D. C., and

borrowed about $375.00. They said that afterwards an ap-

pointment was made to see the petitioner at his office at 7:00

p.m., that evening. (September 1, 1955) They testified that

at the keeping of this appointment the petitioner and Miss

Stephenson went into a private room. (R. 16) There, she

said, the petitioner painted her uterus with iodine and

thereafter squeezed a paste into her after which she was

given a shot of penicillin. (R. 18) Mr. Leon said he paid

the petitioner $300.00 and they then left his office.

Miss Stephenson and Mr. Leon said they went directly

from the petitioner’s office to Mr. Leon’s apartment in

Arlington, Virginia. Miss Stephenson remained there over

night. On the next day, the 2nd of September, 1955, she

said she began to have pains in her abdomen. At about 9:00

p.m., that evening, the pains became sharper and she

fainted. The witness Leon testified that she then aborted.

Her description was that she felt a feeling of relief. Ske

later regained consciousness, at which time she noticed

that the pain had ceased. She said that she felt fine but

that there was quite a bit of bleeding from the uterus, and

that in addition to the blood, she also passed ‘‘tissue of

some sort.’? (R. 18-24) She said that she remained at

6

Mr. Leon’s apartment until the morning of September 3rd.

(R. 24)

After Mr. Leon had concluded his testimony, the Govern-

ment called one Jean Manning Pate as a witness. Miss

Pate testified that in June, 1955, she resided at 1902 37th

Street, N. W., Washington, D. C., with a person named

June Raines from whom she was renting. She said that

at some time during that month, she saw the petitioner at

the subject residence. She said that she, the petitioner and

Miss Raines engaged in conversation. (R. 54-56) At this

point, counsel for the petitioner sensing that the Govern-

ment was about to elicit testimony from the witness that

was objectionable, requested that counsel for the govern-

ment approach the bench and proffer to the court what he

proposed to establish by the witness. At the bench, counsel

for the government made the following proffer:

MR. McLAUGHLIN : I intend to show by this witness

Your Honor, that in June of ’55, Dr. Brown went to

that address, as she has stated, and to her and to this

Mrs. Raines, made an arrangement with them for the

purpose of keeping girls over the weekend that he would

send to her, who would have menstrual trouble, and

that they were to pacify them and treat them, and all

that, and if anything happened, they should get in touch

with him.

I am going to ask her if that happened, and if that

arrangement continued up through September of °55;

and she will say, yes. (R. 56)

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4

4

3

Over objection of counsel for the appellant, the witness

Pate testified nearly in accordance with the proffer made

by counsel for the government at the bench. The witness

testified that sometime during the month of June, 1955,

the petitioner entered into an agreement with Miss Pate

and Miss Raines, which, in substance, was: To send patients

to their residence for care and attention; the patients would

have minature labor pains. (R. 54-59)

On cross-examination, the witness Pate testified that no

7

patients were sent from the alleged agreement date and

the date of commission of the offense alleged in the indic-

ment. (R. 59-60, 62-63)

After the case had been concluded, the trial court began

to instruct the jury with respect to the applicable law.

(R. 125) In the course of instructing the jury, the court

correctly pointed out that the statute under which the

petitioner was charged contains two distinct offenses,

namely: the procuring or producing of an abortion or mis-

carriage, and an attempt to procure or produce an abortion

or miscarriage. (R. 132) Although the petitioner was only

charged in the indictment with the procuring or producing

of an abortion or miscarriage, the trial judge, nevertheless,

instructed the jury that if they had a reasonable doubt as

to whether the petitioner procured or produced a mis-

carriage upon Miss Stephenson, they could then pass to

a consideration of the question of whether or not the pe-

titioner attempted to procure or produce a miscarriage

upon Miss Stephenson. (R. 132-139) At the conclusion of

the court’s charge, counsel for the petitioner objected to

the court’s instructions with respect to the statute.’

The petitioner was found guilty by the jury (R. 139);

and sentenced by the court to a term of imprisonment of

from two to eight years. (R. 5) From said judgment an

appeal was taken to the United States Court of Appeals

for the District of Columbia Circuit (R. 3) By judgment

dated November 29, 1956, the Court of Appeals affirmed

the judgment of the District Court. (R. 141) Thereafter,

and seasonably, the petitioner petitioned the Court of

Appeals for a re-hearing en bane. (R. 142) The petition for

re-hearing was denied December 29, 1956. (R. 152)

REASONS FOR ALLOWING THE WRIT

The petitioner respectfully contends that this Honorable

Court should allow this writ because:

* Official transcript of proceedings, p. 657.

8

1. The judgment of the courts below that it was

proper for the trial court to instruct the jury on at-

tempt: (a) constituted such a departure by the trial

court from the usual course of proceedings in a federal

criminal trial, and an authorization of an departure

by the court of appeals, as to amount to a denial of

the petitioner’s right to due process of law; (b) in-

volved such a grave question in the administration of

federal criminal justice as te warrant a determination

as to its propriety by this Court—this question not

having been previously determined by this Honorable

Court; (c) conflicts with the decisions of other Fed-

eral Circuit Courts of Appeals and also notable deci-

sions of state courts of last resort.

2. The judgment of the United States District Court

convicting the petitioner of abortion and the judgment

of the Court of Appeals affirming the conviction, where

there was admitted into evidence agzinst the petitioner

testimony regarding an alleged agreement, conflicts

with the decisions of other Circuit Courts of Appeals

and other unmodified decisions of the Court of Appeals

for the District of Columbia Circuit.

ARGUMENT

I

There are two ways by which the crime of abortion as

defined by the District of Columbia Code may be committed.

First, where a person by means of any instrument, medicine,

drug, or other means whatever, procures or produces an

abortion or miscarriage on any woman. Second, where a

person by means of any instrument, medicine, drug, or other

means whatever, attempts to procure or produce an abor-

tion. D. ©. Code, 1951 Ed., Supp. [IV (1955) Section 22-201.

In the instant cause the petitioner was charged in a one

count indictment with having committed the offense of

abortion by the first method set out, to wit, by means of

medicine and drugs he did procure and produce an abortion

and miscarriage of Syivia J. Stephenson. (R. p. 1) The

petitioner was not charged with having committed the

«

9

offense of abortion as defined by the Code by the second

method set forth in the statute; i.e., of attempting to pro-

‘ure or produce a miscarriage.

At the petitioner’s trial in the United States District

Court for the District of Columbia, the government’s evi-

dence showed that Sylvia J. Stephenson had aborted.‘

There was no evidence showing or tending to show that an

attempted abortion had been committed.’ Notwithstanding:

(1) that the indictment did not charge that the petitioner

had violated the abortion statute by the method of attempt-

*’ ing to procure or produce an abortion; and, (2) that there

was no evidence in the record showing that the statute

had been violated by the commission of an attempt; the

court nevertheless instructed the jury that they could re-

turn a guilty verdict if they believed that the petitioner

attempted to procure or to produce an abortion on Sylvia

J. Stephenson.® (R. pp. 134-135, 138-139)

The petitioner contends that it constituted a denial of

his right to due process of law as guaranteed by the Fifth

Amendment to the United States Constitution for the Dis-

trict Court to have instructed the jury about attempt where

the indictment did not charge an attempt and where there

was no evidence to support such an instruction.

Normally the attempt to commit a felony is a lesser

‘See record pages 22 and 46 to 47 where the complainant, and Arthur Ted

Leon testified that on September 2, 1955, the complainant aborted in Mr.

Leon’s apartment.

*An attempt to commit a crime contains three elements; the intent; the

performance of some act towards its commission ; and, failure of consummation.

Words and Phrases, permanent edition, vol. 4; Ballentine, Law Dictionary

with Pronunciations, second edition; Wharton’s Criminal Law, 11th ed., Vol. 1,

p. 268 et seq.; Burdick, Law of Crime, vol. 1, Ch. 22, C.J.S. 137; 14 Am. Jr.

813; Lemke v. United States, 211 F2d. 73; cert. denied 347 U. S. 1013; U. S.

v. Baker, 129 F. Supp. 684. The attempt to commit an offense is merged in

proof of the completed offense. Wharton, supra, vol. 11, page 1059; People

v. Cosad, supra; Gapion v. Com., 196 S. W. 2d. 744, 302 Ky. 867; State v.

Baker, 276 S. W. 2d. 131 and case cited therein.

*This portion of the Court’s instructions, about attempt, followed the

court’s instruction on procuring or producing an abortion.

Alb Ri OL SEGA OIE Bs

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10

offense than the felony,’ and thus in the District of Columbia

for some crimes the attempt to commit the offense is em-

braced in the offense, e.g., larceny, kidnapping, embezzle-

ment and housebreaking. This means that in a prosecution

for one of these felonies, where the indictment only charges

the commission of the crime, the court may instruct the

jury on the lesser offense of attemnmt. In fact Rule 31(c) of

the Federal Rules of Criminal Procedure * impliedly au-

thorizes such an instruction.’ But the wording of the abor-

tion statute precludes an instruction on an attempt to pro-

cure or to produce an abortion where the crime charged

is the procuring or the producing of the abortion. Both

the attempt and the commission are on the same plain;

both are means by which the statute may be violated. There-

fore, the attempt is not embraced in the act of procuring

or producing the abortion; the statute makes them acts

of equal quality and subject to the same punishment.

Where a statute makes different acts criminal and the

accused is charged in an indictment with the violation of

the statute by one of the means provided, the petitioner

asserts that the case cannot, as here, be submitted to the

jury on the theory that he is guilty of violating the statute

in a manner different from that charged. Such a practice

makes for a fundamental denial of due process of law, and

is, moreover, flagrantly contrary to the concept of what

is right in the administration of criminal justice. Its

ereatest evil is that the jury is authorized to convict upon

a theory of guilt that has not been raised in the trial by

either the allegations or the proof. The District Court’s

Unless otherwise provided, Title 22-103; D. C. Code, 1951 ed. makes it a

misdemeanor.

*“Conviction of less Offense. The defendant may be found guilty of an

offense necessarily included in the offense charged or of an attempt to commit

either the offense charged or an offense necessarily included therein if the

attempt is an offense.”

® Provided there is evidence to support an instruction on: (a) attempt;

Simpson v. U. S., 195 F.2d. 731; Small v. U.S., 153 F.2d. 144, (b) lesser included

offense; Sparf v. United States, 156 U. S. 51; Goodall v. U. S., 180 F.2d. 397;

Burcham v. U. S., 163 F.2d. 761; Marcus v. U. 8. 86 F.2d. 854, 859.

Te ee ee

ll

instruction on attempt was tantamount to adding a count

to the indictment.

Under the court’s instructions, the jury returned a

general verdict. It is impossible to determine upon which

of the two theories that was submitted to the jury, a finding

of guilt was made.

Petitioner contends that the practice that is complained

of here does violence to his fundamental rights to due

proce: of law and to a fair trial, and that, without the

showing of any additional prejudice, reversible error has

been committed. This has been the view of all the cases

that have considered the question. It should be noted that

the question raised here is novel in the District of Columbia ;

and as far as counsel has determined has never been passed

upon by this Honorable Court.

The case of Novy v. State, (1911) 138 S. W. 139, 62 Tex.

Cr. R. 492, is illustrative of the universal view. There the

appellant was charged in a two count information; the

effect of which was to charge him with directly keeping

a bawdy house where liquor was unlawfully sold and kept

for sale by him. The information was drawn under a

statute which, in the language of the Court—‘There are,

at least three separate and distinct offenses made’’. One

is where the party who is charged directly for himself or

as agent, or through an agent unlawfully keeps a bawdy

house or a disorderly house. The second offense created

by the statute is where the accused is concerned in keeping,

or, assists, or abets the keeping of a bawdy house. The

third offense under the statute is knowingly permitting

the keeping of a bawdy house. The appellant, as above

noted, was charged only with directly keeping a bawdy

house; he was not charged with keeping it through an

agent; or with knowingly permitting it to be kept by some

one other than himself.

At the appellant’s trial the Court instructed the jury

that they could find the appellant guilty if they believed

that the appellant violated the statute in any of the three

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ways. On appeal, the court, in reversing the appellant’s

conviction said the following:

‘‘Several complaints were made of the charge of

the court. We deem it unnecessary to notice but one,

and that is that the court not only submitted to the

jury the specific charge that was made against the

appellant by the information, as hereinbefore ex-

plained, but that in addition thereto, he submitted the

keeping of such house by the appellant through an

agent and of knowingly permitting it to be kept ....

This charge was excepted to by the appellant at the

time it was given; the complaint thereof being that the

Court not only submitted the question of whether the

defendant directly kept or was concerned in keeping

said house, but he also directly submitted, in addition

thereto, if he kept it through any agent, or knowingly

permitted it to be kept, the jury was authorized to

find him guilty ....’’

‘*TIt has long been the established doctrine that, when

an offese is charged to have been committed in one

way, it is error for the court, over the defendant’s

objections, to authorize the jury to convict, if the evi-

dence shows that he violated the statute in some other

way not charged in the information or indictment. Reid

v. State, 9 Tex. App. 472; Kennedy v. State, 9 Tex. |

App. 400; Hunt v. State, 9 Tex. App. 404; Tooney v.

State, 5 Tex. App. 163; Winzel v. State, 47 Tex. Cr.

R. 267, 83 S. W. 187.

‘*For this error alone the judgment in this case is |

reversed, and the case remanded.”’ i

In Randle v. State, 1882, 12 Tex. Cir. 250; the court in |

forceful language also enunciated the general rule of law,

which as indicated, was set out in the Novy case above.

The full opinion of the Court is as follows:

‘There are two modes by which the crime of adultery

as defined by the Code may be commitied. Ist. Where

the man and woman live together and have carnal

intercourse with each other. 2nd. Where they have

habitual carnal intercourse with each other, without |

living together. See: Penal Code, art. 333.

a

13

“It is a rule of practice which obtains in criminal

as well as civil actions that the allegations upon which

the action is founded and the proof adduced must meet

and correspond. It is a further rule well settled and

established that, where a particular fact or cireum-

stance is alleged as constituting or forming a part of

the descriptive identity of the offense charged, the

prosecution is held and limited to that particular state

of facts in the proof adduced to establish he crime;

and, further, the court in its charge to the jury is also

limited to the matter charged as constituting the offense,

and that to submit to the jury in the charge other

matters constituting the offense which are not alleged

is a radical and fundamental error, which will neces-

sitate a reversal because this court cannot ascertain

in such case whether or not the party may not have

been convicted on matters not charged against him in

the indictment or information. In other words, where

the allegation is descriptive of the offense, the guilt

of the defendant must be found, if at all, upon the

ground alleged in the information or indictment.

“*In the case before us the adultery is alleged in the

information to consist in the fact that the parties un-

lawfully lived together and carnally knew each other.

In the charge to the jury the court instructed them in

substance that if they believed the parties had habitual

carnal knowledge of each other, that would be sufficient,

without proof of an actual living together. This charge

was erroneous; ‘and from the pertinency of this errone-

ous charge to the evidence, it cannot be regarded as an

abstraction not affecting the trial of the cause’ Coney

v. State, 43 Tex. 414. On the contrary the charge was

radically erroneous; and for this error the judgment

is reversed and the cause remanded.”

For other cases that have followed or declared the general

law, see: State v. Berkendorf (1932) 10 P.2d. 1073, 1075;

Garner v. State, (1921) 57 So. 502, 3 Ala. App. 161; State

v. Reed (1907) 81 N. BE. 571, 168 Ind. 588; Walker v. United

States (1939) A. Cir. 104 F.2d. 456 ; United States v. Byers

(1934) 2nd Cir.) 73 F.2d. 419; Malaga v. United States

(1932 1 Cir.) 57 F.2d. 829.

14

The prosecutor in his opening statement to the jury

stated that the petitioner had offered to Miss Stephenson

and Mr. Leon, for a fee of $50.00 the facilities of a premises

in Georgetown, Washington, D. C., where she might go

and be attended to while in the course of aborting: Then

by way, apparently, of contemplated corroboration he also

told the jury in his opening statement that the petitioner did

have such a place because he had entered into an agreement

with one Miss Jean Pate and one June Raines, in June

of 1955, to refer patients to their Georgetown residence.

(R. p. 6, 8)

Counsel for the petitioner duly objected to these remarks

on the ground that any testimony relating to such an agree-

ment was inadmissable because it antedated the date of

the offense. (R. p.7) The court overruled the objection and

held that the remarks were proper, and that the evidence

was admissable to show, ‘‘the scheme and plan he /peti-

tioner/ had for sending these people, after the abortion

was performed.’’ (R. p. 7)

It was known to the prosecutor beforehand that the peti-

tioner had not sent anyone to the Georgetown residence

between the date of the alleged agreement and the date

of the offense charged in the indictment. It then appears

that the strategem engaged by the prosecutor was designed

and calculated for the purpose of prejudicing the petitioner.

The contention of the gevernment and the concurrence

therein by the trial court that the prosecutor’s remarks

were proper and that the evidence was admissible on the

theory of showing scheme or plan to commit the offense

charged is legally untenable; and the subsequent admission

of the witness Pates’ testimony into evidence, prejudiced

the petitioner, denied him a fair and impartial trial, and

constituted a deprivation of the due process of law to

which he was entitled—all in violation of his rights under

the United States Constitution.

An examination of the witness Pate’s testimony (R. p.

54-64) conclusively demonstrates the error of the court’s

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15 -

ruling and highlights the error committed when the court

improperly admitted her testimony. The evidence was not

of such character, quality and sufficiency as would permit

its use to prove scheme or plan. Moreover, it was remote

in point of time *® and was lacking in probative value; it

did not show what patients were referred, or that, in fact,

there was anything illegal intended in the alleged agree-

ment. Essentially, the evidence was not probative of the

facts in issue.

The petitioner is not unmindful of the rule of law that

makes evidence which is otherwise excludable, admissible

for the purpose of showing scheme or plan on the part of

the accused to commit the offense charged. However, this

principle cannot be invoked merely to save the testimony

of the witness Pate, when it is obvious that the evidence

adduced did not satisfy the standards required by the rule.

The government contended that there was a continuing

agreement between the petitioner, June Raines and Jean

Pate, which commenced in Jume, 1955; under the terms of

which, the petitioner was te end patients who had minature

labor pains to the Raines-Pate residence to be cared for

by them. The witness Pate testified to this. And, impor-

tantly, to nothing more.

Pates testimony could not and did not show design, plan

or scheme. It was lacking in probative value, because it

did not show that the agreement was to do an illegal act

nor that it was related to the doing of the offense charged

in the indictment. Consequentiy, the jury was left to preju-

The testimony and evidence disclosed that no one was sent to or referred

to the Pate-Raines residence from the time of the alleged agreement (June)

up to and including September 1, 1955, which was the date of the offense

aileged in the indictment. (R. p. 59, 62) See Martin v. U. S., 75 U. 8S. App.

D. C. 399 at p. 403 quoting Whiteman v. State, 1928, 119 Ohio St. 285, 164, N.E.

51, 63 A.L.R. 595:

“The mere fact that testimony is logically relevant does not in all cases

make it admissible. It must also be legally relevant. A fact which in connection

with other facts renders probable the existence of a fact in issue may still be

rejected, if in the opinion of the judge and under the circumstances of the case

it is considered misleading or too remote.”

PR SLIM ENTE RAL IG OS

16

dicially infer that the agreement was an illegal one and then

to further infer or presume that the illegal agreement so

found was connected with the doing of the act charged

in the indictment. This, the petitioner urges is resting a

presumption or inference on a presumption or inference

which is not legally permissible.

Even if there was an illegal agreement satisfactorily

established, it did not erase the error. For admittedly no

patient was sent to the Pate Raines residence pursuant to

the agreement prior to the date of the alleged offense. It

is difficult to perceive the connection or the relationship

between the ‘‘scheme or plan’’ and the offense charged

when it is considered that the requirement of the exception

for the admissibility of the proof of separate offenses when

the evidence shows scheme or plan, is that the scheme or

plan is of probative value in proving the offense charged.

(Wigmore on Evidence, 3rd Ed. Sec. 304, et seq.)

Courts have long been aware of the dangerous nature

of evidence of the type and character here introduced

through the testimony of the witness Jean Pate.

The United States Court of Appeals for the District of

Columbia Circuit, speaking through the late Chief Judge

Stephens, in his coneurring opinion in Martin v. U. S.,

(1942) 75 App. D. C. 399, 127 F.2d. 865, said, in referring

to Burge v. U. S., 26 App. D. C. 524, the following at page

402:

“Tt is equally well settled that, subject to certain

exceptions which will be referred to below, the Govern-

ment cannot as part of its proof that a defendant is

guilty of a crime charged, include evidence that he has

committed another crime or erimes’’.

‘‘The exceptions, however, to this rule are few, and

they are well stated in People v. Molineux, 168 N. Y.

264, 293, 61 N. FE. 286, 62 L.R.A. 193, thus: ‘Generally

speaking, evidence of other crimes is competent to prove

the specific crime charged when it tends to establish

(1) motive; (2) intent; (3) the absence of mistake or

accident; (4) a common scheme or plan embracing

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17

the commission of two or more crimes so related to

each other that proof of one tends to establish the

others; ...

And at page 404 of the opinion the Chief Judge further

said: at a See

‘* As appears from the Government’s contention stated

above the two exceptions which it is necessary to deal

in the instant case are the so-called ‘Common scheme

or plan’ exception and that referred to as the ‘identity’

exception. To bring a case within the former ‘there

must be evidence of system between the offense on trial

and the one sought to be introduced. They must be

connected as parts of a general and composite plan or

scheme or they must be so related to each other as to

show a common motive or intent running through

both.’ People v. Molineux, 61 N.E. at 299. Underhill

on Criminal Evidence (1st Ed. 1898) Section 88 puts

it thus:

‘*. . . Some connection between the crimes must be

shown to have existed in fact and in the mind of the

actor, uniting them for the accomplishment of a com-

mon purpose, before such evidence can be received.

This connection must clearly appear from the evidence.

Whether any connection exists is a judicial question.

If the court does not clearly preceive it, the accused

should be given the benefit of the doubt, and the evi-

dence rejected. The minds of the jurors must not be

poisoned and prejudiced by receiving evidence of this

irrelevant and dangerous description.’? Emphasis con-

tained in the original citation.

The court in the Martin case (supra) at page 404 also

significantly indicated that even in the instance where it

is determined that the evidence is admissible as an excep-

tion, the factor of necessity should be considered. More-

over, the Court recognized the compelling need for cau-

tionary instruction to the jury. In the case at bar none was

given.

See also: U. S. v. Klass, 166 F. 2d. 373; Hubby v.

17, S. 150 F. 2d. 165; People v. Molineux, 168 N. Y., 264,

18

293, 61 N. E. 286; 2 Wigmore on Evidence (3rd Ed.

1940) Section 304; Railton v. U. S., 127 F. 2d. 691.

CONCLUSION

The petitioner respectfully urges that this writ should

be allowed because the questions involved herein are im-

portant to the proper and orderly administration of federal

criminal justice, and should therefore be determined by

this Honorable Court. The decision of the Court of Appeals

in this cause conflicts with the decisions of other Circuit

Courts of Appeals and is contrary to the general law. This

Honorable Court should grant this writ and hold (1) that

the District Court erred in instructing the jury on attempt

and (2) that it was error for the District Court to admit into

evidence the testimony against the petitioner relating to

the alleged agreement.

Curtis P. MircHELL

Joun A. Sorter, JR.

Counselor for Petitioner

508 Fifth Street, N. W.

Washington 1, D. C.

INDEX

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CITATIONS

Cases:

Fisher v. United States, 328 U. S. 463.....-......---

Statutes and Rule:

18 U.S. C.:

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22 D. C. Code (1951 Ed., Supp. IV) 201____._.-----

Federal Rules of Criminal Procedure, Rule 31 (e)_---

Miscellaneous:

I Wigmore on Evidence (3d ed.), Section 83... ..._---

(1)

416964—57

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Guthe Supreme Court of the Gnited States

OcTOBER TERM, 1956

No. 715

ScHLEY BROWN, PETITIONER

Vv.

UniTep STaTes OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The per curiam opinion of the Court of Appeals

(R. 140) has not vet been reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on December 14, 1956 (R. 143). A petition for

rehearing was denied on December 26, 1956 (R. 152).

The petition for a writ of certiorari was filed on

January 25, 1957. The jurisdiction of this Court

is invoked under 28 U. S. C. 1254 (1).

QUESTIONS PRESENTED

1. Whether, under an indictment charging a com-

pleted abortion, the trial court properly charged the

(1)

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jury that it could find petitioner guilty of an at-

tempted abortion.

2. Whether the trial court properly admitted evi-

dence that petitioner had an arrangement (not shown

to have been utilized) whereby women would be

taken care of at a home during periods of pain.

STATUTE INVOLVED

22 D. C. Code (1951 Ed., Supp. IV) 201 provides

in pertinent part:

Whoever, by means of any instrument, medi-

cine, drug or other means whatever, procures

or produces, or attempts to procure or produce

an abortion or miscarriage on any woman,

unless the same were done as necessary for

the preservation of the mother’s life or heaith

and under the direction of a competent li-

censed practitioner of medicine, shall be im-

prisoned in the penitentiary not less than one

year or not more than ten vears * * *,

STATEMENT

Petitioner was convicted in the United States Dis-

trict Court for the District of Columbia on an indict-

ment charging that he procured and produced an

abortion of a pregnant woman (R. 1, 139). He was

sentenced to imprisonment for from two to eight

years (R. 5). On appeal the conviction was affirmed

per curiam (R. 140).

The evidence for the government was that a Miss

Stephenson, after she learned that she was pregnant

(R. 30-31, 70-71, 79), went to petitioner’s office with

a Mr. Leon (R. 11, 38). In a conversation with Mr.

3

Leon, petitioner agreed to perform an abortion for

$300 (R. 39).

On September 1, 1955, Miss Stephenson and Mr.

Leon, who had borrowed $300 from a bank (R. 14,

40), went to petitioner’s office about 7 p. m. (R. 14

15, 40). Petitioner took Miss Stephenson into an-

other room and inserted a paste in her uterus. (R. 16-

19). Mr. Leon paid petitioner $300 (R. 42).

The next day, at Mr. Leon’s apartment, Miss Ste-

phenson had considerable pain. At about 7:30 p. m.

she had sharp pains, then a feeling of relief followed

by fainting (R. 20-23, 45). When she regained con-

sciousness, she noticed tissue and blood (R. 23-24,

31). Mr. Leon also testified that he saw tissue and

blood (R. 47).

Miss Stephenson subsequently went to another

physician and received medical treatment at George-

town hospital in October 1955 (R. 26-27, 93-96, 99).

The Hospita! physician testified that the clinieal evi-

dence was consistent with a recent incomplete abor-

tion (R. 100).

Mr. Leon testified that, in his first conversation with

petitioner, the latter said it would be advisable for

Miss Stephenson to go to a home in Georgetown

to wait for the treatment to take effect and recuper-

ate for a few days (R. 39-40, 42). Mr. Leon said

he would take care of her himself (R. 42). Over

objection (R. 53), the government was permitted to

introduce testimony that in June 1955 petitioner had

made arrangements with two women living in George-

town to take care of women patients who, as he

put it, would have pains for approximately 10 hours

4

(R. 58-60). No patients were sent there before

September 1 (R. 60).

Petitioner denied he had ever seen Miss Stephen-

son and Mr. Leon before his arrest and testified that

he was not in Washington on September 1, 1955

(R. 113-117).

In submitting the case to the jury, the judge

charged that, for the completed offense of abortion,

there had to be proof beyond a reasonable doubt

that the woman was pregnant and that the defendant

procured an abortion (R. 134). He charged that if

the jury had doubt as to whether the woman had

a complete abortion, or that she was actually preg-

nant, it should consider whether defendant was guilty

of an attempt under the statute. For such offense,

he charged, it was immaterial whether the woman was

in fact pregnant or did in fact abort, so long as

the defendant believed she was pregnant and at-

tempted to produce an abortion (R. 134). The jury

returned a verdict of ‘‘guilty as charged”’ (R. 139).

ARGUMENT

The opinion of the Court of Appeals for the Dis-

trict of Columbia, relating to a local crime, presents

no question warranting review by this Court. Fisher

v. United States, 328 U. S. 463, 476.

i, Petitioner contends (Pet. 13) that it was error

for the trial judge to submit the attempt issue to

the jury since the indictment did not charge an at-

tempt. Rule 31 (c) of the Federal Rules of Criminal

Procedure, however, specifically provides:

5

The defendant may be found guilty of an

offense necessarily included in the offense

charged or of an attempt to commit either

the offense charged or an offense necessarily

included therein if the attempt is an offense.

The District of Columbia statute under which pe-

titioner was indicted specifically made an attempt to

procure an abortion a crime.

The argument (Pet. 9-10) that the rule has no

application to this statute because the attempt and

the completed offense are subject to the same punish-

ment has no merit. By its terms, Rule 31 (¢) can

apply only where an attempt is specifically made

an offense. And in federal criminal law generally,

when attempt is made an offense, it is common to

have both the completed act and the attempt subject

to the same maximum punishment, thus leaving the

severity of the sentence to the discretion of the trial

judge. (E. g.. 18 U. S. 486, 493, 507, 508, 542, 601,

751, 752, 754, 872, 1013, 1015(c), 1542, 1717, 2113).

The suggestion (Pet. 9) that there was no evidence

to justify an instruction on attempt is also without

merit. Petitioner’s counsel had endeavored to inject

into the ease an issue as to the pregnancy of Miss

Stephenson on the basis that the doctor’s statement

to her that she was pregnant was based on mannal

examination (R. 77-80, 103-104). Moreover, there

was no direct testimony that a fetus had been passed.

Petitioner moved for judgment of acquittal on the

ground that the government had not proved preg-

nancy and had not proved an abortion (R. 107-108).

On any theory, there was sufficient evidence from

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which the jury could find that an attempt had been

made. The instruction on attempt was therefore

proper in relation to the evidence in the case.

2. The evidence as to petitioner’s arrangement

with the women in the Georgetown apartment was

germane. Mr. Leon testified that, at his first inter-

view with petitioner, with only the two of them pres-

ent, petitioner suggested that Miss Stephenson go to

a house in Georgetown (R. 39-40, 42). The fact

that petitioner had arranged for this type of care

was corroborative of Mr. Leon’s testimony that peti-

tioner agreed to perform, and subsequently did pro-

cure, an abortion. The basic issue in the ease, of

course, was the credibility of the government’s wit-

nesses measured against petitioner’s offer of an alibi.

Moreover, the fact that petitioner had an arrange-

ment of the kind described (see the Statement, supra,

pp. 3-4) was evidence of his scheme of operation and

of his willingness to commit the crime of abortion,

and therefore properly admissible on that ground.

See I Wigmore on Evidence (8rd ed.), Section 83.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

J. LEE RANKIN,

Solicitor General.

WaRREN OLNey, III,

Assistant Attorney General.

BrEaTRICE ROSENBERG,

Attorney.

FeBRuary 1957.

U. S. GOVERNMENT PRINTING OFFICE: 1957

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