On writ of error to the Atlantic Quarter Sessions.
For the State of New Jersey, Harry R. Coulomb, Prosecutor; Robert N. McAllister, Assistant Prosecutor.
For the plaintiff in error, Glenn & Glenn (Alfred T. Glenn, Jr.).
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. Mrs. Martha McFadden was convicted in the Atlantic Quarter Sessions on an indictment which charged the causing and procuring of a criminal miscarriage upon Eleanor Marie Klempfner. The case is brought up by the defendant on writ of error with a certified record. There can be no doubt, under the evidence, that the offense charged was committed by someone on the premises occupied in part by Mrs. McFadden.
At the trial Miss Klempfner testified that she was unable to identify the defendant as the person who had performed the operation. In this and in other respects Miss Klempfner and her sister Miriam failed to testify in the manner expected
by the prosecutor, whereupon the prosecutor alleged surprise and was permitted, over the defendant's objections, to prove, in neutralization, earlier statements by these two young women that had been taken down stenographically and that were in direct contradiction of their testimony in court on material points.
It is said that the finding of guilt was against the weight of the evidence and that the court erred at the close of the state's case and again at the close of the defendant's case in refusing to direct a verdict of acquittal; and the phase of the argument on these points most urgently stressed is that there was no identification of Mrs. McFadden as the person who performed the criminal act and that therefore there was a fatal omission in the proofs.
The jury had believable evidence that a Mrs. McFadden at the street address of the defendant was called upon the telephone, was informed that Miss Klempfner was "in trouble" and made an appointment for the rendering of the desired service; that Miss Klempfner went to the apartment of a Mrs. McFadden on premises where defendant admits she had her residence, was there admitted on the appointment made over the telephone and was forthwith taken into a room and subjected to a douching with a substance that was intended to procure, and that within a half day did procure, the expulsion of the foetus; that the woman who admitted Miss Klempfner, who was, to all appearances, in charge of the premises and who administered the treatment, answered to the name of "Mrs. McFadden;" that the defendant is named Mrs. McFadden, maintains an apartment as stated and, confronted by the girl upon whom the act was committed, and accused by the latter as the person who had perpetrated the abortion, preferred to remain mute although given the opportunity to speak. If all of the circumstances related above were lawfully admitted in proof and constituted competent evidence bearing upon guilt, we think that there was testimony upon which the jury could find guilt without laying the verdict open to a charge of being against the weight of the evidence. The real question, as we see it, is whether the silence of Mrs. McFadden in the face of accusation and identification
may be properly treated as evidential; and we think ...