Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D. Sullivan, J.A.D. (dissenting).
This is an appeal from a judgment of conviction and an order denying a motion for a new trial in the Passaic County Court.
On January 23, 1957 after a protracted trial, defendant was found guilty of the crime of abortion as defined by N.J.S. 2 A:87-1:
"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." (Emphasis ours)
At the same trial William Trotter was acquitted upon a separate indictment charging him with aiding and abetting Thompson contrary to the provisions of N.J.S. 2 A:85-14. The defendant was sentenced on February 15, 1957 to a term of not less than 12 nor more than 15 years in State Prison, which term he is presently serving. Defendant filed
a notice of appeal to this court on May 7, 1957. While this appeal was pending, he filed a motion for a new trial upon the grounds of newly discovered evidence, which was dismissed by the County Court because of the pendency of the appeal, R.R. 3:7-11. On June 27, 1957 this court appointed counsel upon defendant's application. On December 27, 1957 we granted defendant's motion to reinstate the motion for a new trial, and on April 11, 1958, after a plenary hearing, the motion was denied. On June 26, 1958 the request of assigned counsel that he be permitted to withdraw was granted and defendant was ordered to prosecute the appeal pro se. He then perfected his appeal. When the briefs and record were submitted to us in advance of the hearing date, the record suggested the possibility of error which had not been raised by defendant's brief. The court then offered defendant counsel, and the offer being accepted, Mr. Besser was appointed in such capacity. We have outlined the post-judgment progress of the case to make clear that the procedure has been orderly, despite the seemingly lengthy period of time intervening between the date of conviction and the hearing of the appeal.
The crucial questions to be determined are whether or not the court committed error in its charge (to which no objection was noted) and if so, whether it is such as to require reversal under R.R. 1:5-1 as "plain error."
The factual synthesis developed at the trial was the following:
Thelma B., a married woman ten weeks pregnant, died on July 28, 1956. An autopsy disclosed that the cause of death was a massive inter-abdominal hemorrhage resulting from two perforations of the uterus. In the early part of February 1956 Thelma met Trotter, a married man, in a cocktail lounge in which he was employed as a bartender. A friendship developed, in the course of which they had sexual intercourse. On June 23, 1956 Thelma informed Trotter that she was pregnant and insisted that, if he "did not do something about it," she would tell his wife. On
the following evening Thompson came to the bar with a female companion. Trotter told his troubles to Thompson. At Thompson's suggestion a meeting was arranged with Thelma immediately, and about midnight they called at her apartment, Thompson bringing with him a bag and a syringe. Thompson talked with Thelma out of Trotter's presence and, upon rejoining him, told him not to worry. They then left. About a month went by while Thelma was on a vacation. During this time she sent a letter to Trotter stating "Nothing yet. See you soon." Upon her return, Thelma again threatened that if Trotter did not "do something" she would tell his wife. Trotter relayed this information to Thompson, who said he would talk to her again and a meeting of Thelma and Thompson was arranged by Trotter for July 27, 1956. Late in the evening of that day, Thompson admitted Thelma to his apartment and, according to him, he then left for his shop. He stated that he returned 15 or 20 minutes later to find Thelma in the bathroom complaining of a stomach ache. He asked her to lie down and then walked into the kitchen to make a cup of tea, at which time he saw Thelma fall down, unconscious. Thompson then called a girl friend who came to the house. They replaced part of Thelma's clothing. She had been unclothed from the waist to the knees. They then went to Thelma's car, drove around for a time and, eventually, took her to the entrance of her home. There Thompson had a conversation with Mrs. Conover, a roommate of Thelma. He then left. Shortly thereafter Mrs. Conover called the police who arrived with an ambulance. The victim was taken to the Barnert Memorial Hospital in Paterson where she died.
The State concedes that its case was purely circumstantial but contends that under the authority of State v. Siciliano , 21 N.J. 249 (1956), there was sufficient proof to enable a jury to find that Thompson perpetrated the crime. We have no doubt that this is so, particularly in view of the medical proof that it was improbable that the victim could have herself inflicted the internal wounds which were
found on autopsy. If the question presented dealt only with the weight of the evidence we would unhesitatingly affirm the conviction.
But the problem is not that simple. At the outset it is noted that the court in its charge confined itself to a discussion of the legal principles which it found to be applicable to the case. While this was the court's prerogative, and it is not herein criticized, the fact that the law was not keyed to the testimony is a factor to be considered when the ability of the jury to apply the law as the court stated it to be, is put in question. After stating that separate indictments were being tried together, one charging Thompson with "the crime of abortion causing death," the other ...