Nature of the Case
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Facts
Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. It was recommended that Linda be taken to Dr. Straatsma, an ophthalmologist at the UCLA Medical Center. Dr. Straatsma performed an exploratory operation, and the resulting biopsy established the nature of the child's affliction. Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. Consent was given, and Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting, they encountered a Mrs. Eaton who told them that D had cured her son of a brain tumor without surgery. Mrs. Epping called, and D repeatedly assured them that he could cure Linda without surgery. D urged them to take Linda out of the hospital, claiming that the hospital was 'an experimental place,' that the doctors there would use Linda as 'a human guinea pig' and would relieve the Eppings of their money as well. At trial, the prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged, or she would have been completely cured. D treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th, the Eppings dismissed D. They then sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment. Linda died, and D was indicted for second-degree murder. D testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to 'treat' cancer as such, but only to give 'supportive' care to the body as a whole. He variously described his purpose as being 'to build up her resistance,' 'assisting the body to overcome its own deficiencies' and 'supporting the body defenses.' The trial court gave a tripartite instruction on murder in the second degree: 'The unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree: '(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or '(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or '(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended.' D was convicted, and this appeal was taken.
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