On error to the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas; Donal C. Fox, Assistant Prosecutor (C. William Caruso, Special Assistant Prosecutor, of counsel).
For the plaintiff in error, David Green and Harkavy & Lieb (Abraham I. Harkavy, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
PORTER, J. Louis Weiss, herein called the defendant, was indicted and convicted of the crime of abortion. N.J.S.A. 2:105-1 (b.). The case is before us on a certificate of the entire record of proceedings at the trial, pursuant to N.J.S.A. 2:195-16.
The indictment charges that the defendant and one George E. Harley on July 20th, 1940, at Newark "maliciously and without lawful justification, with intent to cause and procure the miscarriage of Rose Castellitto, a woman then pregnant with child, did use in and upon the said Rose Castellitto divers instruments and means, to the grand jurors aforesaid unknown," &c. Harley pleaded non vult to the indictment before trial and appeared as a witness for the state against the defendant.
One of the points urged for reversal is that the verdict was against the weight of the evidence. We shall consider that first. The state alleges and argues that the proofs establish that Rose Castellitto, hereinafter called Rose (her name is misspelled in the indictment) was having meretricious relations with one James Corino by reason of which she became pregnant and that the defendant, a registered pharmacist, sought to bring about an abortion first in March or April, 1940, by selling medicine to Corino which he prepared for Rose, and on two subsequent occasions, once in May, 1940, and again on July 20th, 1940, when he called in Harley, formerly a licensed physician, and arranged with him to perform the abortions; that Corino paid defendant for the operations amounts agreed upon between him, Harley and defendant, said money being divided equally between defendant and Harley; that Rose was taken by Harley to his rooms in Newark where the operations were performed by the use of instruments. These occurrences are supported by the testimony of Corino, Rose and Harley. The defendant admits selling medicine to Corino on two occasions, but says that it was a standard patent medicine used in case of delayed menstruation which it was lawful for him to sell over the counter and which was medicine specifically asked for by Corino and not suggested, advised or prepared by him. He admits that he knew Harley who frequently came into his drug store, but denied knowing that Harley had been a licensed physician, and denied participating in the abortions or having any knowledge of them. We have the testimony of the three witnesses mentioned above in support of the charge and the categorical denial of the defendant. Contrasting and appraising
this evidence, we do not think that the verdict was against the weight of the evidence.
Another point argued is that the trial court erred in refusing to grant defendant's motion for a mistrial. There was a dispute as to whether or not an attorney first retained by defendant was present with him at police headquarters when defendant there made a written statement to the police. A police officer testified that the attorney was called as a witness by the state, and on cross-examination volunteered the reason for withdrawing as defendant's counsel, stating that he did so "when Mr. Weiss wanted to fix the case." Defendant's counsel moved for a mistrial. The court denied the motion and struck out the comment and directed the jury to disregard it. It is argued that the making of this statement by the witness was prejudicial to the defendant and that it was an abuse of discretion on the part of the trial court not to have declared a mistrial. We conclude that the cross-examination by the plaintiff in error provoked the comment volunteered by the witness and that it was within the sound discretion of the court to deny the motion for a mistrial after striking out the statement and properly instructing the jury to disregard it.
Next it is argued that reversible error was committed by the court in permitting the witness, Ervey, to testify to the circumstance of his taking Corino to the defendant's drug store. Ervey said that Corina and Rose called on him at his home and that he took Corino to defendant's store and introduced him to defendant. Ervey was questioned as to the purpose of the visit to defendant to which he answered that "He [meaning Corino] was not positive. He thought possible she was pregnant or had a cold." This, while hearsay, we think was admissible. The witness had been examined as a defense witness to show the character and reputation of the defendant as an honorable man. He testified that he was a very fair man and that he had never heard anything against him. On cross-examination the prosecutor brought out ...