Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[36 NJSuper Page 335] This is an appeal from a judgment of conviction of the defendant on the first of two counts of an indictment charging him with a violation of N.J.S. 2 A:87-1, dealing with acts intended to accomplish an abortion. It charged him, in substance, with having used "divers instruments and means unknown" in and upon one Jane Harrison, a pregnant woman, with intent to cause and procure a miscarriage, on February 14, 1954, in the Township of Shrewsbury. A second count, of which defendant was acquitted by the court on motion at the conclusion of the entire case,
charged that he "advised and directed" Jane Harrison "to take divers drugs and medicines," with similar intent. Both counts allege that the woman died in consequence of the actions charged against defendant. One Henry Neuwirth was charged in both counts as an accomplice, but not tried.
A number of grounds of appeal are argued but our conclusion requires extended discussion of only one, the alleged insufficiency of the evidence adduced by the State, either at the conclusion of the State's case, or at the end of the entire case, to establish defendant's guilt of the charge laid in the first count. Motions for judgment of acquittal thereof were denied by the trial judge. The nub of the case, in our view of it, is whether the statute requires that there be produced evidence sufficient to permit a finding that some sort of "instrument or means" was used by the defendant in the perpetration of the offense, and, if so, whether any such evidence was adduced by the State.
N.J.S. 2 A:87-1 reads as follows:
"Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a pregnant woman, administers or prescribes or advises or directs her to take or swallow any poison, drug, medicine or noxious thing, or uses any instrument or means whatever, is guilty of a high misdemeanor.
If as a consequence the woman or child shall die, the offender shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both."
The factual case proven at the trial against the defendant was this. An amatory association between Henry Neuwirth and Jane Harrison, both unmarried and in their early 20's, had resulted in her pregnancy. Neuwirth testified that at about 2:30 P.M. on Sunday, February 14, 1954 they arrived at the "Blue Jay" Diner in Eatontown. They sat in a parked car and waited for a yellow Buick convertible. Shortly thereafter a car of that description arrived, driven by defendant. Henry and Jane got into it. Jane said "Tony?" in a questioning tone. Defendant answered "yes" and asked,
"Do you have the money?", whereupon Jane and Henry each gave him $150 in cash. Defendant then told Henry he would meet him at the same place at about 6 P.M. and drove off with the girl in the Buick, proceeding in a northerly direction on Route 35.
There was evidence that defendant had access to the home of a Mrs. Appleby, a widow friend of his, in Eatoutown (Shrewsbury Township) and that his car was seen parked there at various times in the afternoon of February 14, when she was not at home. Neuwirth testified that at about 6.00 P.M. he drove back to the Blue Jay Diner and within a few minutes the defendant drove up in his yellow Buick with Jane. Together they helped her into Neuwirth's car. She was not feeling well or able to walk very well. The defendant told him she was not feeling well and that she should rest the next day. Neuwirth informed him they would be staying at Dale's Drive-In, a motel, and proceeded there with the girl, spending the night with her. Jane had cramps and pains all night and couldn't walk. The following morning, said Neuwirth, the defendant came "to see how Jane was feeling" and left some pills for her, saying, "Well, if you take these pills * * * every so often * * * you will feel better as soon as you pass this clot and you will be up on your feet the next day."
The girl's pains continued all next day, February 15. The defendant came there in the evening, according to Neuwirth, offered to give her an injection, which she refused, and left more pills. He said that if she got worse Neuwirth should call him at an Eatontown phone number which he gave him. Jane's condition became worse that night and during the next day, Tuesday, February 16. That evening Neuwirth phoned Dr. Kelemen, who directed him to take her to the Hazard hospital, and he brought her there at 10:00 P.M. He said he then phoned and told defendant what he had done and asked him to meet him and bring him $100 as he would need some cash. Defendant complied. On cross-examination he said the arrangements with defendant had been made by the girl, not him.
There was testimony by a Long Branch detective that defendant was confronted with Neuwirth at the Long Branch Detective Bureau in the early morning of February 17 and that the latter was asked, "Is this the man that you paid the $300 to for the abortion?", replied, "Yes, that's the man," and that the defendant remained silent. There was also proof that defendant was brought to the hospital and into the presence of the girl, that she was asked whether he was the man who committed the abortion and that she replied, "that's the man."
Dr. Kelemen, a surgeon, examined Miss Harrison upon her admission to the hospital, found scanty vaginal bleeding, that she had abdominal pain and was unable to retain food. He catheterized the bladder, removed urine and administered intravenous fluids. On the morning of February 18 he performed a "dilatation and curretage" on the patient. This consists of a dilatation of the cervix (opening of uterus), an instrumental entry of the uterus and a scraping out of its contents. The contents were sent out for laboratory examination and analysis. This was the extent of the direct examination of the physician. The girl remained at the hospital until February 23, when she was removed to a hospital in New York, and she died there the next day. On cross-examination, counsel for defendant established that the hospital record contained an entry by Dr. Kelemen, on admission of the patient, that "Patient has a severe oliguria, possibly due to self-induced drugs?" An oliguria is an insufficiency of urine passage. There was also a notation, and the doctor confirmed the fact, that "Patient and husband deny criminal abortion." (Neuwirth originally represented himself as Miss Harrison's husband.) It was further shown, on cross-examination of the doctor, that there were no marks or lacerations on the cervix ...