For affirmance -- Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For modification -- Justice Heher.
The judgment is affirmed for the reasons expressed in the opinion of Judge FRANCIS in the court below.
On appeal from a judgment of the Superior Court, Appellate Division, where Judge Francis filed the following opinion. "Anthony Novak, who is presently confined to State Prison, seeks review of the denial of an application for a writ of habeas corpus.
"The record discloses that two separate indictments were returned against him. One charged that on July 28, 1954 'maliciously and without lawful justification' he inserted certain instruments into the private parts of one Ruth * * *, who was then pregnant, for the purpose of procuring a miscarriage, contrary to N.J.S.A. 2 A:87-1.
"The second indictment alleged that on July 30, 1954 he again used the same type instruments on the same person for the purpose of procuring her miscarriage, contrary to the same statute.
"The indictments were joined for trial pursuant to R.R. 3:5-6. The prisoner urges that it was necessary to try them separately. However, he was represented by counsel who, so far as the record shows, made neither objection to the joinder nor application to be relieved therefrom under R.R. 3:5-7. Moreover, the alleged impropriety of the court's action was reviewable by appeal after judgment. Habeas corpus is not available for the purpose. In re Lenkowski, 17 N.J. 191 (1955); In re Caruso, 10 N.J. 184, 190 (1952). But in any event we find no error with respect to the joinder.
"The actions then proceeded to trial. Novak says that the jury found him guilty on both indictments. The prosecutor's brief asserts that the not guilty pleas were withdrawn and separate pleas of non vult entered -- presumably during the trial. Neither party has given us the actual record as to this. Subsequently consecutive sentences of five to six years in State Prison were imposed on each conviction.
"In May 1955 a motion was made pro se to correct the sentences on the ground that they were illegal. The ground urged therefor was precisely the same as the principal one argued in this proceeding. On May 27, 1955 a memorandum was filed denying the relief sought. No appeal was taken. On the subject of repetitious applications, see State v. Fontano, 26 N.J. Super. 166, 170 (App. Div. 1953), affirmed 14 N.J. 173 (1953), certiorari denied 347 U.S. 945, 74 S. Ct. 641, 98 L. Ed. 1093 (1954).
"Some months later the present petition for a writ of habeas corpus was presented. It was argued on December 8, 1955, at which time Novak's counsel asked the court to consider the proceeding as including a request to set aside either one of the two sentences. Both matters involved the same allegation of error, namely, that the alleged separate crimes set out in the indictments were in fact and in law but one violation of the abortion statute. Therefore it was claimed that the effect of the two indictments was to put the prisoner in double jeopardy and to procure his conviction twice for the same offense.
"We brush past the multitude of procedural reasons why the appeal should not be disposed of on the substantive issue raised. The fact that the question should have been presented on motion addressed to the indictments, or by way of defense at the trial, or on appeal from the convictions, itself is sufficient to warrant affirmance of the action in the County Court. In re Caruso, supra. However, the merits will be considered in order to terminate the matter.
"The contention is that the two instrumentation episodes engaged in on different days were but parts of one continuous attempt to commit an abortion. The crime proscribed by our statute is complete when a person with intent to cause the miscarriage of a pregnant woman 'uses' instruments on her to accomplish the purpose. N.J.S.A. 2 A:87-1; State v. Gedicke, 43 N.J.L. 86, 89 (Sup. Ct. 1881). It is not necessary that the miscarriage actually occur to justify conviction. State v. Sturchio, 131 N.J.L. 256 (E. & A. 1944); 1 Am. Jur., Abortion, § 12; 1 C.J.S., Abortion, § 9.
"Thus, when Novak inserted the instruments as charged on July 28, 1954 with intent to cause an abortion, the crime was committed. Then when he engaged in a like act on July 30, 1954, on the same woman with the same object in mind, a separate and distinct violation occurred.
"Under some circumstances a series of separate acts which are dependent parts of a single process for the accomplishment of an abortion might form one crime. But commission of one act designed in itself to cause an abortion constitutes the statutory offense. If the result sought is not brought about and, as here, two days later another independent act, of itself designated to produce the abortion, is performed, a new offense arises.
"Attention was given to the very problem in People v. Von Mullendorf, 110 Cal. App. 2 d 286, 242 P. 2 d 403 (D. Ct. ...