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State v. Lisena

Decided: December 9, 1943.

THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
MICHAEL A. LISENA, PLAINTIFF IN ERROR



On writ of error.

For the plaintiff in error, Bozza & Bozza (Frank B. Bozza).

For the defendant in error, William A. Wachenfeld, James L. McKenna and C. William Caruso.

Before Brogan, Chief Justice, and Justices Bodine and Colie.

Bodine

The opinion of the court was delivered by

BODINE, J. Plaintiff in error was convicted under an indictment which charged that he: "maliciously and without lawful justification, with intent to cause and procure the miscarriage of * * *, a woman then pregnant with child, did use in and upon the said * * * divers instruments and means to the Grand Jurors aforesaid unknown."

This indictment is based upon R.S. 2:105-1. It follows the language of the statute in charging the offense. Obviously, a motion to quash the indictment was properly denied. State v. Morris, 98 N.J.L. 621; affirmed, 99 Id. 526; State v. Lewandowski, 121 Id. 612.

A motion to quash an indictment is addressed to the discretion of the court and is not reviewable on strict writ of error or under R.S. 2:195-16; State v. Grossman, 94 N.J.L. 301; affirmed, 95 Id. 497.

The verdict was not against the weight of the evidence. The state evidence was clear and convincing. The injured woman gave her testimony in a concise manner. In many essentials it was corroborated by the physicians who attended to her needs at St. Michael's Hospital in Newark. The

officers, who took the plaintiff in error to the hospital, testified that she identified him and that he did not deny the charge. At no time, except by the technical plea of not guilty, was there ever a denial of any of the particulars proved by the state. Plaintiff in error could have taken the witness stand but failed to do so, content apparently to rely upon a somewhat flimsy alibi which the jury did not believe.

In the course of the examination of one of the physicians who attended the woman at the hospital the following occurred: "When you say, doctor, that you diagnosed the condition of * * * as that of an incomplete abortion, what do you mean by that, a criminal abortion, a criminal tampering? A. We do not have no -- at least, you cannot tell by that that it was a criminal abortion." On redirect examination: "Q. What information did you get from her, doctor? A. That she had it done. By whom we do not know. Of course, it had already been on the chart. Q. These numerous causes that you mention, it also could have been caused by the insertion of an instrument into her vagina on June 20th? A. Without a doubt. The court: What do you mean by she had it done? What did she tell you? The witness: That it came from natural causes -- it come through criminal Mr. Bozza: I object. The court: Strike out the word criminal. Through physical interference? The witness: Through physical interference."

A motion was then made to strike out the question and the answer, which was denied, the trial court saying: "It was on record she had it done. That did not convey a thorough understanding to my mind and I wanted to have it cleared up and settle the uncertainty, so I think I had a perfect right to do it and overrule the motion. Counsel: Well, I did not hear it. The court: I do not like your saying you did not hear it. You were here and if you did not hear the question it is up to you to ask what he said. Counsel: Unfortunately, I was consulting with the accused. The court: It is unfortunate for you to try to do two things at once, or anybody ...


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