On error to the Essex County Court of Quarter Sessions.
For the state, Duane E. Minard, Jr., Prosecutor of the Pleas.
For the plaintiffs in error, Harold Simandl.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. On November 24th, 1945, Mildred Brown died at the Newark City Hospital of septic endometritis and peritonitis, ailments which had their source in the womb and were caused, in the opinion of the surgeon who performed the autopsy, by an abortion, either criminal, accidental or spontaneous. Plaintiffs in error were indicted for and convicted of committing a criminal abortion upon Miss Brown, in consequence of which she died. The entire record is returned.
The points presented are that the verdicts were contrary to the weight of the evidence, that the court erred in refusing at the close of the state's case and again at the close of the entire case to direct verdicts of acquittal and that the court further erred in a ruling on evidence and in charging the jury.
There is evidence that: Mildred Brown went with one Henry Sykes to the house of Mrs. Bessie Boyd on Eighteenth Avenue, Newark, New Jersey, on the evening of October 12th, 1945. Sykes had been asked by a friend of Miss Brown
whether he knew "of anyone that did such a thing," and, making inquiry, he had been directed to that address. The couple saw and talked with Mrs. Boyd. Sykes told the latter that "Mildred was in trouble * * * and she wanted to be helped out." Mrs. Boyd said that it would cost $50 and that they should "come back the following day to see someone else that would commit this abortion," that Mildred would have "to come back tomorrow and speak to another person -- another woman -- 'Shorty.'" Sykes and the young woman returned the next evening and again saw Mrs. Boyd who said that the other woman had not yet arrived but would definitely be there the next day and that "it would cost her $25 more -- in other words it would cost her $75 to have this done." The next afternoon -- Sunday -- the two again called and "because Shorty hadn't arrived yet" went away and came back later in the evening. On the second visit Mrs. Boyd was there and "Shorty" -- Mrs. Cawthan -- was there also or came in presently. Mrs. Cawthan told Miss Brown that "it wouldn't be anything to hurt her," that it wouldn't take long and that if Miss Brown got sick "she would take care of her." Mrs. Cawthan also asked Miss Brown "how many months she was gone," to which the girl replied, "A few months." Mrs. Boyd withdrew, as did also Mrs. Cawthan and Miss Brown, and Sykes was left alone in the living room. After ten or fifteen minutes the young woman came back and left with Sykes. It appears that Miss Brown did not go to her home until a week from the following Tuesday, nine days, at which time she returned ill and bleeding. A physician was called, and the patient was removed to the City Hospital where she was found to be suffering from "incomplete abortion and septicemia," an incomplete abortion in which septic poisoning had set in. She died at the hospital a month later, as narrated above. The county medical officer who performed the autopsy was satisfied that the decedent had been recently pregnant.
Defendant Cawthan did not take the stand. Defendant Boyd denied the entire series of incidents in which she was said to have participated and undertook to prove an alibi which was severely shaken.
Without attempting a further particularization of the evidence, we express our view that the proofs at the close of the state's case and at the close of the entire case called for consideration by the jury, State v. Sgro, 108 N.J.L. 528; State v. Bricker, 99 Id. 521, and that the verdict of guilty may not be said to be so clearly against the weight of the evidence as to give rise to the inference that it was the result of mistake, passion, prejudice or partiality, State v. Kellow, 136 Id. 1; State v. Tomaini, 118 Id. 162.
The evidence is in part direct and in part circumstantial. The truth of Henry Sykes' testimony, as of all the testimony, was for the jury to determine. If the Sykes testimony was true, it is susceptible of no other rational interpretation than that Sykes went with Mildred Brown to the house of Mrs. Boyd for the purpose of obtaining an illegal operation of abortion upon Miss Brown and that an arrangement was made with Mrs. Boyd for the performance of the abortion at a fixed price, that Mrs. Boyd, in pursuance thereof, procured the presence of Mrs. Cawthan and that, in further accord with that arrangement, Miss Brown subjected herself, in private, to the ministrations of Mrs. Cawthan in cooperation with Mrs. Boyd for a purpose which involved the questions of likelihood of pain and of possible consequent illness and upon which the length of Miss Brown's pregnancy had a bearing and which, under all the proved facts of the case, could not reasonably have been other than the unlawful discharge of the foetus by instrument. The facts that Miss Brown was subjected to an abortion and that she died from an infection and bodily poisoning caused therefrom are clear. All of which, with the evidence left as it was, lead convincingly to the conclusion that the act was not only purposed but was done. The series of incidents involving Mrs. Boyd and Mrs. Cawthan are not otherwise explained. Mrs. Boyd denies ...