Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The defendant was convicted of abortion. He appeals to this Division on the ground that the proof adduced to prove pregnancy was not sufficient to withstand the motion for a judgment of acquittal at the close of the State's case or at the close of the entire case, or in the alternative, if such evidence created a problem for determination by the jury, the guilty verdict was contrary to the weight of the evidence.
The nature of the attack upon the verdict is such as to require a careful analysis of the record.
Defendant has been a medical doctor of this State for about 27 years. He also holds a law degree but never sought admission to the bar. For many years he specialized in obstetrics and gynecology, and at the time of the events in question maintained his office in Elizabeth, New Jersey. But he testified that he was not in active practice; he was in semi-retirement, although he did some work; he was receiving some form of disability pension as a war veteran.
The victim of the abortion is one Sally Matheu Hanula, of Blairstown, New Jersey, a young woman approximately 23 years of age at the time of the trial. She was married but separated from her husband, whose whereabouts were unknown. A child had been born of that union, now four years of age. She had graduated from high school and had qualified as a medical technician after completing a two-year course in a medical laboratory school. Thereafter she worked for a year in the Newton Memorial Hospital, then for a
doctor in Newark, and as an X-ray technician at the Beth Israel Hospital also in Newark.
She met one Henry Hess, of Stillwater, a neighboring town between Blairstown and Newton, New Jersey, and began to go out with him about in July 1955. They engaged in sexual relations "several weeks" before September 17, and about the second week in August she "noticed" that she had missed her menstrual period. The history she gave later to Dr. Victor Burn at the Newton Memorial Hospital (which was admitted without objection) was that her periods were regular, appearing every 28 to 30 days. Believing that pregnancy had taken place her physician, Dr. Terhune, of Newton, was consulted. A Friedman test followed (performed at the Newton Memorial Hospital, again according to the history given to Dr. Burn), which she was familiar with as a medical technician and knew to be a test for pregnancy. Upon receiving the result of the test, she believed she was pregnant. Dr. Burn's history from her was to the effect that the test was positive. Following the report, about the end of August or the early part of September she discussed the situation with Hess and decided to have an abortion. Pursuant to that decision, on September 12 she withdrew $300 in cash from her savings account, a fact which was corroborated by the bank book.
In some manner, undisclosed by the record, Mrs. Hanula had obtained the professional card of the defendant containing his address in Elizabeth and telephone number. This was given to Hess who, it is admitted, telephoned at 8:38 P.M. on September 16, and talked to him for four minutes (according to the telephone company records) and made an appointment for an examination of his (Hess') "wife," the next afternoon, Saturday, at 3:00 P.M.
Hess and Mrs. Hanula drove to Dr. Colmer's office the next day. He went in first, leaving her in the car. There he told defendant that his girl friend (not his wife) was pregnant and he "would like to see if something could be done about it." In answer to an inquiry as to the length of her pregnancy, he said he believed about three weeks.
Then at Colmer's request she was brought into the office where she informed him that she was pregnant, "at least [she believed] she was," that she had had a Friedman test and wanted an abortion. In answer, he said it would cost $400. Thereupon she gave him $300 in cash and Hess wrote a check on a Newton bank for the additional $100. It was drawn to cash at the doctor's direction. A few days later it was endorsed by Colmer's wife and deposited in her name in their joint account.
There was very little conversation after this, although 15 or 20 minutes elapsed during which the defendant said he was sterilizing his instruments. While the sequence of events is disputed, Colmer conceded that he sterilized speculums, a sponge holder, hemostats, forceps and a tenaculum. Presumably, in view of the kind of operation performed, some cutting instrument was included also. During this waiting period, they talked briefly from time to time. On one of these occasions, while discussing the case and before he had ...