Opinion
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., of the County of Los Angeles, Harry Wood, Robert J. Lord, Deputy Dist. Attys., for appellant.
Ramsey & Emlein, Long Beach, for respondent.
FOURT, Justice.
This is an appeal from 'the order of the Superior Court * * * of Los Angeles, made * * * on the 3rd day of August 1962, setting aside Count I of the indictment under Section 995 of the Penal Code.'
In an indictment filed in Los Angeles County June 14, 1962, Jerome Rehman was charged in Count I thereof with a violation of section 192, subd. 2, Penal Code (manslaughter) in that he did on or about the 29th day of June 1959 in Los Angeles County 'wilfully, unlawfully, feloniously and without malice kill Rosa Lugo.' The indictment shows on its face that in the first instance the figures and words, '9th day of June, 1959' were typed in and such supposedly was the date of the alleged offense. The figures and letters '9th' were sometime later crossed out with pen and ink and the figures '29' and the initials 'VO' are handwritten in ink above the typewritten '9th.' The foreman of the grand jury was named Verne Orr.
Count II of the indictment charged that Rehman with several other named persons was guilty of conspiracy to commit acts which were injurious to the public health and further to violate various numbered sections of the Penal Code, Business and Professions Code, Insurance Code, Health & Safety Code, and the rules promulgated by the State Department of Health. Many overt acts were set forth and alleged.
The clerk's transcript lodged in this court discloses that Rehman assertedly filed a demurrer to the indictment and a motion to set aside the indictment under section 995 of the Penal Code. However, the record before this court does not contain a copy of either the demurrer or the motion. We have pursuant to the Rules on Appeal directed the original superior court file brought to this court. From the original superior court file it is ascertained that on July 30, 1962, Rehman filed a motion to set aside the indictment. The motion followed the language of the statute (Pen.Code, § 995) and stated that it was 'upon the ground that the defendant has been indicted without reasonable or probable cause.' There was in support of such motion an extended statement of facts (portions of the testimony taken before the grand jury), written argument and points and authorities. The whole of that set of documents in devoted to the proposition that 'reasonable or probable cause' to indict On the same day, July 30, 1962, Rehman filed as a separate document a demurrer to the indictment with extended points and authorities. Therein he demurred to the indictment upon (among others) the grounds 'that the facts stated to not constitute a public offense'--using the statutory language as contained in section 1004, subdivision 4 of the Penal Code. Aftet three days of oral argument before the trial judge an order was made sustaining the demurrer as to Count I and granting the motion under section 995 of the Penal Code as to Count II.
Transcript of judge's statement as time of making his ruling:
'Now the Court is satisfied that the statute of limitations does apply * * *
A 'notice of appeal from order setting aside a portion of the indictment and request for additional record' was filed by the prosecution on August 10, 1962. The notice reads in part that the appeal is 'from the order of the Superior Court * * * made * * * on the third day of August, 1962, setting aside Count I of the indictment under Section 995 of the Penal Code.' It further sets forth that 'in addition to the normal record' the appellant requests the record of the transcript of the proceedings before the grand jury and that such additional record was necessary because A resume of some of the evidence which was presented to the grand jury and the inferences which may be drawn therefrom is as follows: Jerome Rehman was during the time in question a doctor of osteopathy. A hospital known as Bixby Knolls Hospital on Atlantic Boulevard was licensed as a general hospital through Rehman and others. Rehman practiced medicine and operated at that and other hospitals. Rosa Lugo, a married woman 29 years of age, the mother of several children, had a cyst on her buttock and went to a clinic where Rehman engaged in his practice on occasions. Rehman told Mrs. Lugo she needed surgery to have the cyst on her buttock removed. Her husband discussed the matter with the doctor and he, the husband, then consented to his wife's going to the hospital to have the cyst removed. She was operated on by Rehman on June 9, 1959, at the Southside Community Hospital. Dr. Montgomery was a consultant and he, along with other doctors and nurses who were present at the operation, testified before the grand jury. It was stated that Dr. Rehman removed the buttock cyst, removed the uterus and the appendix of Mrs. Lugo. The husband stated in effect that he was not aware of the operation on his wife's uterus and appendix. The operation lasted approximately 3 hours. Mrs. Lugo bled profusely and died on June 29, 1959. A pathologist testified in effect that he performed an autopsy and determined that she died as a direct result of the surgery and that septicemia was the cause of death--that the blood vessels were not adequately tied off and that a blood clot in the pelvic region, the size of a basketball, was found. Another doctor (a pathologist) testified in effect that he could not see the necessity for the surgery upon the uterus (typically called a hysterectomy) or for the removal of the appendix, that he had never seen anything like it before and that it was gross negligence and such was the reason for the death of Rosa Lugo. The circulating nurse at the time of the operation in question testified in part before the grand jury that Rehman was the 'operating doctor,' that three surgeries were performed on Mrs. Lugo at the one occasion. That first, the cyst on the buttocks was removed, then 'a hysterectomy was performed,' that there was excessive bleeding, that the patient was weakening and her blood was 'turning black' which indicated that 'carbon dioxide instead of oxygen was going into the blood stream' and further she testified 'I was a little perturbed, and I have witnessed many doctors operating, in fact I have been a surgical nurse on a couple or three operations because I was under Mrs. Cascio's training, I worked for my husband for five years and I went in the hospital to learn the surgical procedure there at the hospital. I had the honor to work with many great doctors there, my husband included, and to me this was very unethical, although I am not qualified as a registered nurse, or a L.V.N., or a P.N., but watching other doctors work, to me this was very unethical and I made the statement, 'Why the hell don't you turn her over and take out her tonsils,' which I felt was too much on one woman to go through at one time, being under an anesthetic all of that time.'
The contention of appellant is that the evidence is such as to indicate strongly that the operation was performed in a grossly negligent manner and furthermore that neither deceased or her husband consented to the operation.
There was ample evidence to sustain the indictment. The order granting the motion to dismiss under Penal Code section 995 was reversible error.
A trial was had as to the charges contained in Count II of the indictment (conspiracy). It is noted that the indictment was filed on June 14, 1962, which is 3 years and 5 days after the date of the operation upon Mrs. Lugo but within 3 years from the date of the death.
Appellant asserts that 'in the crime of manslaughter the date of death commences the running of the statute of limitations.' Respondent contends that the statute of limitations commences to run for the crime of manslaughter at the time the blow is struck or the cause inflicted and not at the time of death of the victim.
At the time of the argument before the trial court the testimony before the grand jury was analyzed in great detail and discussed at length and the matter of the statute of limitations under the demurrer was argued extensively and many citations of authority on both sides were presented to the court.
Section 800 of the Penal Code reads as follows: 'An indictment for any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records, must be found, and information filed, or case certified to the superior court, within three years after its commission. An indictment for the acceptance of a bribe by a public official or a public employee, a felony, must be found, and the information filed, or case certified to the superior court, within six years after its commission.' (Emphasis added.)
In California the statute of limitations is jurisdictional and an indictment or information which shows on its face that the prosecution in barred by the statute of limitations fails to state a public offense (People v. Holtzendorff, 177 Cal.App.2d 788, 2 Cal.Rptr. 676; People v. McGee, 1 Cal.2d 611, 613, 36 P.2d 378).
In the case before us it is obvious that the offense of manslaughter had not been committed until the victim died. The death completed the crime of manslaughter. Until the death occurred it was not manslaughter and before the moment of death the prosecution could not have investigated and prosecuted Rehman as a person who had committed manslaughter. See State v. Taylor, 31 La.Ann. 851; Brockway v. State, 192 Ind. 656, 138 N.E. 88, 26 A.L.R. 1338; Alderson v. State, 196 Ind. 22, 145 N.E. 572, 573.
We are not here concerned with the rules as expressed in cases involving expost facto laws, venue matters, res judicata, or double jeopardy situations. If we are to deal with the question at all we should limit ourselves to the facts of this case and consider it strictly and solely as a statute of limitations matter unmixed with any other phase of the law.
It was appropriately stated by Justice Learned Hand in Daeche v. United States, 2 Cir., 250 F. 566, 570, to the effect that if a crime is defined as an act irrespective of the consequences, the crime is the act; but if a crime is defined to include some consequence of the act the crime is the consequence when produced by a human agency.
'In short, if the crime, as homicide, be defined to include some consequences of the act, it may be argued and has been generally decided (citing cases) that the crime takes place only where the consequences occur. The crime is the consequence when produced by human agency whether near or far.'
In effect our law makes the crime of manslaughter a composite one--the striking of the victim (or whatever was done) does not alone make the crime nor does the death of a victim without a striking (or some other conduct or force) make the crime. It is a composition of the two. Death must by
Respondent places some reliance on what is stated in People v. Miller, 12 Cal. 291. In that case the question involved was whether the indictment showed on its face that the offense of which the defendant was convicted was committed more than 3 years before the indictment was filed. The indictment was for murder and the defendant was convicted of manslaughter. There was no averment as to the time, which would be essential in an indictment for manslaughter. The court properly reversed but that is in no way of any assistance to Rehman in this case. The court in the Miller case made reference to the common law rule and to Blackstone's Commentaries. See Commonwealth v. Ladd (1960) 402 Pa. 164, 166 A.2d 501, where the defendant struck a blow on September 21, 1958, and the victim died on November 1, 1959, and a motion by defendant to quash the charge as being beyond the year and a day was denied and where the common law on that subject is discussed at some length in scholarly fashion.
There can be no doubt a demurrer is a proper method or procedure to use in testing whether the facts as stated in an indictment constitute a public offense. (Penal Code, § 1004.) The demurrer in this instance was proper in form. If the defendant's contention to the effect the Statute of Limitations started to run at the time of the operation (or the striking of the blow) namely, on June 9, 1959, and the indictment was filed on June 25, 1962, then clearly the facts stated do not constitute a public offense for the indictment would show upon its face that the Statute of Limitations had run. See People v. Degnen, 70 Cal.App. 567, 234 P. 129. If the prosecution's contention is correct that the time is computed from the date of the death then the Statute of Limitations did not run. In this particular case no amount of amending of the indictment could have been of any assistance to the prosecution and as a consequence no leave to amend the indictment was granted, nor would the filing of a new indictment have been of any assistance.
No special procedure is provided by the Penal Code for the raising of the question of the bar of the statute of limitations. There are no provisions for a special plea to reach the issue (People v. Allen, 47 Cal.App.2d 735, 118 P.2d 927).
As heretofore stated the Statute of Limitations in criminal actions is jurisdictional and an indictment which shows on its face that the prosecution is barred by the Statute of Limitations 'fails to state a public offense.' People v. Hoffman, 132 Cal.App. 60, 22 P.2d 229; In re Davis, 13 Cal.App.2d 109, 56 P.2d 302; In re McGee, 29 Cal.App.2d 648, 85 P.2d 135; 14 Cal.Juris.2d § 202.
The point may be raised at any time before or after judgment (In re McGee, 29 Cal.App.2d 648, 85 P.2d 135; People v. McGee, 1 Cal.2d 611, 36 P.2d 378; In re Davis, 13 Cal.App.2d 109, 56 P.2d 302; People v. Holtzendorff, 177 Cal.App.2d 788, 2 Cal.Rptr. 676; Doble v. Superior Court, 197 Cal. 556, 799, 241 P. 852. It is the law of California at this time at any rate that the entry of a minute order sustaining a demurrer to an indictment is a sufficient judgment within the meaning of the statutes from which an appeal may be taken. In People v. Dobbs, 70 Cal.App.2d 261, 161 P.2d 46, it is said: '[T]hat no provision is made in the Penal Code for any entry of judgment on demurrer other than the entry of the order upon the minutes, as provided for in section 1007. * * *
Section 1002, Penal Code. The only pleading upon the part of the defendant is either a demurrer or a plea.
'Section 1238, which sets forth specifically the instances in which the People may appeal, makes no mention of a judgment of dismissal but definitely provides for an appeal 'from a judgment for the defendant on a demurrer.' Assuming that a court, under its general powers, could properly enter a judgment of dismissal, after a demurrer has been sustained and upon refusal to amend, and that such a judgment would be appealable under subdivision 2 of section 1238, it would be unreasonable to hold that this subdivision refers exclusively to a judgment entered under such implied powers and that it does not apply or relate to the only such judgment which is specifically provided for in the Penal Code, the one mentioned in section 1007. Section 1005 provides for a demurrer to an information. Section 1006 provides for an early hearing on that demurrer. Section 1007 then provides that on considering this demurrer the court 'must give judgment,' and then provides that its order thereon 'must be entered upon the minutes.' Under some dircumstances, in civil cases, a minute order is considered as a judgment for the purpose of serving as a foundation for an appeal and no good reason appears why the same should not be true, in such a case as this, where the code section expressly provides that the court must give judgment and then, in effect, provides that this judgment shall be entered in the form of a minute order. As the court pointed out in the Jordan case [65 Cal. 644, 4 P. 683]: 'The order in the minutes is the judgment.' Assuming that a judgment of dismissal may properly be entered after the sustaining of a demurrer, under certain conditions, another form of judgment, to be entered as a minute order, is specifically provided for in section 1007. In our opinion the entry of such a minute order is a sufficient judgment, within the meaning of the statutes, from which an appeal may be taken.'
It is apparent from what has heretofore been set forth that the order granting the motion under section 995 of the Penal Code was in error and should not have been granted. It is further apparent that the order sustaining the demurrer to Count I of the indictment upon the grounds that the Statute of Limitations had run was in error and the demurrer should have been overruled.
Neither of the parties in this cause has mentioned or intimated that this court cannot now pass upon the determination of the trial court (order sustaining demurrer to Count I of the indictment) from which no appeal was taken. Nor has either party mentioned that no appeal was taken from the order sustaining the demurrer. It is clear from the record that the prosecution did not appeal from the order with reference to the demurrer as to Count I. No amount of liberal interpretation of flexible thinking will permit of a holding to the effect that the notice of appeal in this case included an appeal from anything other than the section 995 proceedings. Although the order sustaining the demurrer was clearly in error it is now final and this court can do nothing about it. Under the circumstances this court has no jurisdiction to make any order, or decree or to otherwise act with reference to the order sustaining the demurrer.
The effect of the failure of the prosecution to take a proper appeal from the order sustaining the demurrer to Count I of the indictment is (the judgment thereon now being final) that the defendant does not now have to stand trial on the charge of manslaughter as alleged in Count I of the indictment. To the end that the record be complete in this court, the order granting the motion to set aside Count I of the indictment under section 995 of the Penal Code is reversed.
WOOD, P.J., and LILLIE, J., concur.
'The Demurrer is sustained on the ground of misjoinder as to Counts I and II, and they are ordered severed.
'Secondly, the Demurrer is sustained as to Count I on the ground that the same appears to be barred by the statute of limitations. (Emphasis added.)
'Third, the Demurrer is overruled in all other respects.
'No. 4 the motion under 995 Penal Code is granted as to Count I and is denied as to Count II. (Emphasis added.)
'Now the result of this ruling in my opinion will be as follows:
'That first the two counts are severed, and I want that to be clear that they are severed prior to the rulings that follow, because no matter what happens these two matters should not be tried together. The Court feels that the acts alleged are too remote from one another to compel the Defendants in Count II, the six other Defendants, to sit through the trial of Count I. There appears to be no evidence in the record to connect the other six Defendants with that count. So no matter what happens on the other rulings they should be severed.
'The reason the Court is trying to be careful about the order of these rulings is that I do not believe the trial should be delayed on Count II awaiting any Appellate decision as to Count I. That is why I have set these orders forth in a logical sequence so as to accomplish that result.
'Then, thirdly, of course, the Demurrer is overruled in all other respects, which would be as to Count II, and on all other grounds as to Count I. Then the motion under 995 is granted as to Count I and, of course, there can be an appeal from that order and ruling, but still again if that were reversed, Count I would still be tried separately from Count II.
'The motion under 995 is denied as to Count II and there is no serious request on the part of the Defendant that it should be granted as to Count II, and I can see no basis for it either. Those are the rulings and in that order.' (Emphasis added.)
MINUTE ENTRY
'Proceedings are resumed from August 2, 1962. Deputy District Attorney John A. Marin; Defendant Jerome Rehman with counsel, A C S Ramsey and Defendants Mark Sincoff, Richard Alfred Gorman and Charles Edwin Symes with counsel, A C S Ramsey and Russell Pray, present. Arguments on defendants' motions to dismiss indictment and demurrers to indictment are completed. The court makes the following ruling: 1--Demurrer is sustained on the grounds of misjoinder of Counts I and 2 and they are ordered severed. 2-- Demurrer is sustained as to Count I on the grounds same appears to be barred by the statute of limitations. 3--Demurrer is overruled in all other respects. 4--Motion under 995 Penal Code is granted as to Count 1 and denied as to Count 2. All defendants waive reading of Count 2 of amended information. Each: Pleads 'Not Guilty' Count 2. Trial is set on Count 2 of amended information September 21, 1962, 9 A M in Department South E. Sincoff: Remain on own recognizance. Rehman, Gorman and Symes: Remain on bail.' (Emphasis added.)
Section 1012, Penal Code. When any of the objectives mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the ojbection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment.