Defendant was found guilty on two counts of having committed abortions. From a judgment and order denying his motion for a new trial, he appeals.
Facts: The evidence disclosed that Molly Simon died as a result of an induced abortion. Deceased's sister testified she accompanied her sister to defendant's office where decedent stated to defendant she was pregnant and did not want to have a baby; defendant advised Molly Simon to have a test made to determine whether or not she was pregnant. Decedent's husband testified that at a subsequent date he took her to defendant's office and paid the latter's receptionist $250; he left decedent in defendant's office, went out and purchased a sandwich and at the direction of the receptionist a sanitary napkin belt; after about three hours he took decedent from defendant's office and on the way home she complained of a pain under her armpit and in her right chest; upon complaints of his wife he had called defendant's office and on instructions of the nurse gave his wife an aspirin tablet and a pill; he again called defendant's office and on the third call talked with defendant; later his wife awakened with a gurgling sound in her throat and he called Dr. Effron, but upon this doctor's arrival at their home the witness's wife had passed away.
Mr. Simon also testified that prior to going to defendant's office his wife was in good health. There was additional testimony that defendant had voluntarily admitted in the presence of police officers he had performed a curettement upon the deceased. He also stated he had performed a therapeutic abortion.
Esther Yontz testified that on March 10, 1951, she saw defendant at his office; defendant examined her; her former husband paid defendant $200 and thereafter Esther Yontz disrobed, put on a nightgown, was given a hypodermic injection by defendant; she then lay dazed but not asleep upon an operating table in his office. Then, according to the testimony of Esther's former husband, defendant put a heavy metal instrument in her vagina. This instrument looked like a large metal spoon with a ball on the end. Defendant scraped material and blood from the vagina. Thereafter Esther left the operating table and was told to go into
Questions: First: Was the district attorney guilty of misconduct in the presentation of evidence that defendant had under similar circumstances committed abortions upon other women than those named in the information?
People v. Darby, 64 Cal.App.2d 25 [148 P.2d 28], relied on by defendant, is here inapplicable because in the cited case evidence was received to the effect that defendant had committed abortions on two other women with "a certain surgical instrument." In the Darby case however there was no evidence that defendant had used any surgical instrument upon the patient involved in the abortion for which he was then being tried. (See People v. Thompson, 69 Cal.App.2d 80, 90 et seq. [158 P.2d 213].)
 Second: Did the trial court commit prejudicial error in instructing the jury as follows?
"The essence of the offense of abortion is the intent to procure a miscarriage. If a person performs an act in violation of the law against abortion, it is not a defense that the woman may previously have herself attempted to bring about a miscarriage."
No. The foregoing instruction was correct.
 Third: Did the trial court err in refusing defendant's request to instruct the jury as follows?
"You are hereby instructed that Penal Code Section 274 does not apply to treatments by a physician or other persons to any woman who is in the actual process of aborting a pregnancy."
No. In view of the cases just cited it is obvious that if the necessary criminal intent were present defendant would be guilty of having committed abortion whether the victim was actually in the process of aborting or not.
 Fourth: Was there substantial evidence to sustain the jury's finding that defendant was guilty of committing an abortion on Esther Yontz?
Yes. Both Mrs. Yontz and her former husband testified to the facts set forth above relative to defendant's attempt to abort her. Such evidence shows that the complaining witness's testimony, conceding that she was an accomplice, and her husband's testimony, likewise conceded to be an accomplice, was corroborated by the admissions of defendant, and his failure to deny accusatory statements made in his presence. Of course the credibility and weight to be given to the testimony were questions to be determined by the jury in the first instance and the trial judge on the motion for a new trial latterly.
Judgment and order are and each is affirmed.
Moore, P.J., and Fox, J., concurred.
A petition for a rehearing was denied July 1, 1952, and appellant's petition for a hearing by the Supreme Court was denied July 17, 1952. Schauer, J., was of the opinion that the petition should be granted.