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State v. King

Decided: December 20, 1945.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
HAZEL E. KING, PLAINTIFF IN ERROR



On error to the Camden County Court of Quarter Sessions.

For the plaintiff in error, Walter S. Keown and Raymond L. Siris.

For the defendant in error, Gene R. Mariano, Prosecutor of the Pleas.

Before Brogan, Chief Justice, and Justices Parker and Oliphant.

Oliphant

The opinion of the court was delivered by

OLIPHANT, J. This writ of error brings up for review the conviction of the plaintiff in error upon an indictment charging her with having committed an abortion. Catherine Walker, upon whom the act was allegedly committed, died.

The writ brings up for review the entire record of the proceedings in the case. R.S. 2:195-16. It is submitted on briefs without oral argument.

There are twenty-four assignments of error and twenty-five causes for reversal. Of these seven of the former and eight of the latter are not argued and will be considered as abandoned. Those remaining are briefed under eleven points.

Sometime previous to trial a bill of particulars had been demanded by the defendant and answers were made thereto. On the trial day, just before the opening, plaintiff in error orally demanded more specific information than that contained in the answers. The first point made is that the trial court's denial of that demand for a more specific bill of particulars was error. Such a demand should have been made promptly and when not made until the case was moved for trial it was too late. State v. Claypoole, 5 N.J. Mis. R. 627; affirmed, 104 N.J.L. 446. Even on the merits plaintiff in error was not entitled to have the demand granted. She had asked for the exact date and time when the instrument for bringing about the abortion was used. The answer was given as "some time or times between October 29th, 1944, and November 8th, 1944," which was a sufficient particularization. The date of the offense was not of the essence of the crime. The state could have offered proof that the offense charged was committed on any day within the period not covered by the statute of limitations. State v. Shapiro, 89 Id. 319; State v. Butler, 7 N.J. Mis. R. 868; reversed on other grounds, 107 N.J.L. 91.

The second point is that the court erred in refusing to grant defendant's motion for a directed verdict of acquittal and it rests on two premises, that there was no evidence from

which the jury could find that Miss Walker was pregnant or that an instrument had been used upon her. We find no merit in the argument. There was evidence of sexual intercourse, cessation of menses and testimony of a medical witness as to the probability of pregnancy. Miss Walker died of peritonitis and in the opinion of another medical witness that was caused by an abortion. There was ample evidence that an instrument was used to perform that abortion. If there is legal evidence from which an inference of guilt can be legitimately drawn there cannot be a direction of acquittal. State v. Geiger, 129 N.J.L. 13; affirmed, 129 Id. 518.

It is next argued that the court erred in permitting various character witnesses produced by the defendant to answer, over objection, the ...


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