For the defendant in error, Walter G. Winne, Prosecutor of the Pleas of Bergen County, and Wallace S. DePuy, Assistant Prosecutor of the Pleas.
For the plaintiffs in error, Fred G. Schlosser, Joseph W. Marini and Samuel L. Hirschberg.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Plaintiffs in error, herein called defendants, stand convicted of producing the miscarriage of a pregnant married woman, one Doreen Stilger. Brandenburg is a licensed physician and surgeon and was convicted as a principal offender. The Strohmeyers and Nell were convicted as aiders and abettors. The case comes up on assignments of error and on specifications for reversal under R.S. 2:195-16.
Defendants first contend that the trial court erred in refusing to charge that the indictment was not evidence against any of the defendants and was not to be considered as evidence during the deliberations of the jury on the evidence in the case. It was held by the Court of Errors and Appeals in State v. D'Orio, 136 N.J.L. 204, that although it was proper for the trial judge to charge the jury that an indictment is no evidence of guilt, it is not reversible error to refuse such charge where presumption of innocence, burden of proof and reasonable doubt are properly charged unless something can be pointed to in the charge or in the conduct of the trial from which it might be said that the jury could have been misled into thinking that the indictment was evidential. The application of that rule to the incidents of the present trial leads us to conclude that the refusal did not constitute reversible error.
It is next said that the court erred in permitting the jury to consider, as competent, testimony regarding allegedly criminal abortions performed upon two women named Caruso and Van Heusen, respectively. The named persons were women who were operated on by Dr. Brandenburg for the removal of embryos at the same time and place as was Mrs. Stilger. The court charged that the testimony was competent for the purpose of determining the question of intent with which the act was committed upon Mrs. Stilger but that the jury was only to pass upon the guilt of the defendants in the case involving Mrs. Stilger. We consider that the disputed proofs were admissible for the stated purpose and that the court charged soundly in that respect. State v. Sturchio, 130 N.J.L. 259; affirmed, 131 Id. 256; State v. Weiss, 130 Id. 149; affirmed, 131 Id. 228.
Defendants next complain of the refusal of the court to charge: "If any of the defendants has admitted conviction of crime, the jury are to consider that fact only for the purpose of affecting credibility as a witness." The matter had relation to the admission by Dr. Brandenburg that he had been convicted of crime. The court, commenting thereon, said, "You may, therefore, as jurors take that into consideration in determining whether or not you will believe the witness, or what weight, or credit you shall, in your judgment, accord to the testimony of that witness." The subject-matter of the request was adequately charged. We find no error in the matter thus advanced.
It is next said that there was error in the charge and in refusals to charge as follows: The court charged:
"Lawful justification is used in the sense of necessity. It is a defense that the destruction of the child's life was necessary to save that of the mother, but it should be remembered that necessity of this class must be strictly limited. The right can only be exercised in extremity."
The court declined to charge that the protection of the health of the woman and the protection of her well-being would constitute lawful justification under the ...