Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This is an appeal by William Sudol from convictions on two indictments tried together.
The first indictment charges him, his wife's sister Irene Muscosky, and her husband Walter Muscosky with assisting Eva Muszynska in performing an abortion upon Sudol's wife, Elizabeth, contrary to the statute N.J.S. 2 A:87-1. Under the other indictment, Sudol, Mrs. Sudol, Irene and one Vincent Drongoski, the husband of another sister of Elizabeth, are charged with a conspiracy, as follows: to obtain back from Eva the $175 that had been paid her for the abortion; to secure an additional sum by pretending, contrary to the fact, that Mrs. Sudol was suffering from peritonitis in a hospital; to get Vincent to impersonate a police officer falsely; and not to report the commission of a crime. The jury found Sudol and Irene guilty on both indictments. The other defendants were acquitted -- Eva by order of the court upon a basis that is not pertinent to the problems before us.
Sudol by his appeal raises three points. First, he claims that the State failed to prove that Mrs. Sudol was pregnant, and hence that his motion for acquittal at the close of the State's case should have been granted with respect to the indictment for abortion.
Upon an indictment for abortion made under N.J.S. 2 A:87-1, it is incumbent on the State to establish that the woman is "pregnant." State v. Loomis , 90 N.J.L. 216, 217 (E. & A. 1917); State v. Clifford , 132 N.J.L. 529, 530 (Sup. Ct. 1945), affirmed 133 N.J.L. 312 (E. & A. 1945); State v. King , 133 N.J.L. 480, 481, 482 (Sup. Ct. 1945), affirmed 135 N.J.L. 286 (E. & A. 1946); State v. Gedicke , 43 N.J.L. 86, 91 (Sup. Ct. 1881); State v. Edwards , 9 N.J. Misc. 34, 36 (Sup. Ct. 1930). In this respect, the statute differs from the common law, for there an indictment did not lie unless the woman was quick with child. State v. Siciliano , 21 N.J. 249, 257 (1956). It differs, too, from the statutes in force in many jurisdictions today, including England, under which one other than the woman may be held for the offense though the woman is in
fact not pregnant. Annot., 46 A.L.R. 2 d 1393, 1404-1408 (1956); 24 and 25 Vict., c. 100, § 58 (1861); 10 Hals. Laws 731 (3 d ed.); Reg. v. Goodchild , 2 Car. & K. 293, 175 Eng. Rep. 121 (1846).
On the motion for acquittal, the question presented by the New Jersey statute was whether evidence had been adduced from which a jury could legitimately draw, beyond a reasonable doubt, an inference of pregnancy. State v. Kollarik , 22 N.J. 558, 564 (1956). Under the practice, to which we adhere, that question must be resolved upon the evidence produced before the State's case had been closed. State v. Pearson , 39 N.J. Super. 50, 56 (App. Div. 1956).
We turn then to the evidence of pregnancy. Except as otherwise noted, we shall rely upon the testimony of Eva who, after being acquitted, was called to the stand by the State. The Sudols had four children, of whom (according to the opening made by Sudol's attorney before the jury) three were in an institution (an orphanage) and the fourth lived with Sudol's mother. Mrs. Sudol (calling herself Mrs. Cervas) and her sister Irene came to Eva, telling her that Mrs. Sudol had missed a menstrual period and soliciting her to perform an abortion. When Eva said she might have her period in a few days, Mrs. Sudol replied she was sure she wouldn't, because she had been given a "rabbit test." Eva said that she did not perform abortions.
Two days later the two women again called upon Eva, this time with Sudol. To Eva, Sudol said (we are, as we have mentioned, relying on Eva's testimony, and the language reflects her own rather broken English):
"I ask you be so kind and help my wife. She lost her menstruation; then we don't want to have any children. We got four. That is enough for us. I have to pay for one month for four children $160. Then I absolutely don't want any more. We can not have it. We work together, with wife. It is enough for take care of family.
If you don't want believe my wife is pregnant, you could examine her. Then you will be sure."
Accordingly, Eva examined Mrs. Sudol manually and, afterwards, replied that she didn't appear to be pregnant. Eva
questioned Mrs. Sudol, asking whether she had had any signs of pregnancy, and Mrs. Sudol answered that she didn't expect signs until after the lapse of nearly three months of pregnancy. Sudol returned within a few days, again pleading with Eva to perform the abortion. Eva refused. He then offered her $175. Eva claims she turned that down, and that he then put something to her side, declaring that if she didn't help, she ...