On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The interpretation of our criminal abortion statute, N.J.S. 2 A:87-1, is one of the principal problems encountered in this appeal, although numerous other errors in the proceedings below are urged.
N.J.S. 2 A:87-1 provides:
"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 defendant was indicted by a Monmouth County grand jury in two counts for a violation of the above statute. The first count charged the defendant unlawfully did use upon a pregnant woman, Jane Harrison, with intent to cause and procure a miscarriage, "divers instruments and means unknown," as a consequence of which the said Jane Harrison died. The second count charged the defendant "unlawfully did advise and direct the said Jane Harrison to take divers drugs and medicines," as a consequence of which she died.
Prior to the trial the defendant demanded, and the State was required by an order of the court to furnish, a bill of particulars. In answer to the questions, in what manner and by what means the abortion charged in the first count was allegedly performed, the State replied: "By use of an instrument or instruments, the names of which are presently unknown to the State." The State was also directed to answer the questions, in what manner and by what means the abortion charged in the second count was allegedly performed. In response to those questions, the State referred the defendant to the answers to the first set of questions.
It would thus appear the State abandoned the second count of the indictment which charged the use of drugs or
medicines inasmuch as its bill of particulars, in answer to both counts, specified the use of instruments.
At the trial, the main witness for the State was Henry Neuwirth, who acknowledged he had had relations with Jane Harrison as a result of which she became pregnant. He testified that on February 14, 1954, at approximately 2:30 P.M., he and Jane met the defendant in front of the Blue Jay Diner in Eatontown. He did not know the defendant prior to that meeting, but he and Jane were supposed to meet a man in a yellow Buick convertible. The defendant appeared in such a car and Neuwirth and Jane got out of their car and entered the convertible. Jane said: "Tony?" and the defendant answered: "Do you have the money?" Jane and Neuwirth each gave Siciliano $150 and then the defendant told Neuwirth he would meet him at the Blue Jay Diner at 6 o'clock. Jane drove off with the defendant in the direction of Shrewsbury Township.
Another witness testified he had observed the defendant's yellow Buick convertible parked in front of the home of a Mrs. Appleby sometime after 2 in the afternoon of February 14 and that the automobile was still there at approximately 5:30 P.M.
Shortly after 6 P.M. the defendant returned in the convertible to the Blue Jay Diner with Jane; Neuwirth was waiting for them, and Jane was helped into his car. She was not feeling well and the defendant remarked she should get some rest. Neuwirth told the defendant he would be staying at a particular motel and that his car would be parked in front of the door. The defendant left and Neuwirth took the girl to the motel. She was quite ill and seemed in pain.
Neuwirth testified that on the following morning the defendant came to the motel and gave Jane some pills and told her she would feel better "as soon as you pass this clot." Nevertheless, Jane's illness continued and that evening the defendant returned and offered to give her an injection but she would not submit to it. He gave her more pills and said everything would be all right.
The girl's condition continued to grow worse and on Tuesday night Neuwirth took her to a local hospital. He called the defendant on the phone and told him he was broke and would need cash for the hospital and asked the defendant to give him $100. The defendant met him at a drug store and gave Neuwirth the $100.
When the Harrison girl was admitted to the Hazard Hospital in Long Branch, she was examined by Dr. Kelemen. He found abdominal pain and some vaginal bleeding. He catheterized the bladder and removed some urine which she was unable to pass. On the morning of February 18 he performed an operation upon her consisting of a dilatation and curetage. He made an instrumental entry into the uterus and scraped out its contents, sending them to a laboratory. He continued to treat her until she was transferred to Mt. Sinai Hospital in New York, where she died on February 24.
On cross-examination, defense counsel elicited that upon the doctor's original examination of the Harrison girl he had made an entry upon her medical record that "patient has a severe oliguria possibly due to self-induced drugs?" He further testified that when the girl was admitted, both she and Neuwirth, who were posing as husband and wife, denied any criminal abortion. The doctor also testified that when he performed the operation upon her, he examined the cervix very carefully and found no marks of any kind upon it, but admitted there were marks after he had finished his operation. Counsel for the defense asked him whether or not the introduction of an instrument into the cervix would leave marks, to which the doctor replied: "No, not necessarily, no." He acknowledged, however, that despite all the care which he had used in his operation he had left marks upon the cervix.
He also testified on cross-examination that some of the contents be had removed from the uterus consisted of very dark tissue peculiarly stained and discolored. He said his opinion at the time was that it was a discoloration such as might or would have been made by a drug.
A Dr. Goldberg, a pathologist, testified he had examined the tissues removed from the uterus of the Harrison girl by Dr. Kelemen. The examination of these tissues revealed the patient had been pregnant and that an incomplete abortion had occurred.
Dr. DiMaio, who performed the post-mortem upon the girl, testified she had died of a post-abortive septic endometritis.
Other than the testimony elicited from Dr. Keleman on cross-examination conjecturing about the possibility of the use of drugs, no testimony was offered as to the means or manner in which the abortion had been accomplished.
Police officers testified for the State that when the defendant was confronted by Neuwirth in the Eatontown Jail on February 17 and identified as the man who had performed the abortion, he remained silent; and he likewise remained silent when he was brought into the hospital room of the Harrison girl and she identified him as the man who had performed the abortion.
At the end of the State's case, the defendant moved for a dismissal of both counts of the indictment. As to the first count, the defendant urged there was absolutely no proof an abortion had been attempted by the use of an instrument. As to the second count, he contended it had been abandoned by virtue of the bill of particulars and that the ...