Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
[74 NJSuper Page 259] Defendants Harry Kaiser and Susan Kaiser, his mother, appeal from judgments of conviction based on the verdict of a jury in the County Court. Indictments were returned against appellants charging them with maintaining a building "as a nuisance" by permitting and by "carrying on knowingly" the "business of lottery or lottery policy" therein, "contrary to the provisions of N.J.S. 2A:130-3"; and with "being the owners of a building" and "unlawfully and knowingly" permitting "the business of lottery and lottery policy, * * * to be carried on by themselves
and their agents, contrary to the provisions of N.J.S. 2A:121-3(c)." In addition, appellants, together with Edna Kaiser (wife of Harry Kaiser) and one John White "also known as John Doe," were indicted for "knowingly and unlawfully" possessing "divers papers, documents, slips and memoranda pertaining to the business of lottery and lottery policy, * * * contrary to the provisions of N.J.S. 2A:121-3(b)"; and for conspiring "to knowingly possess papers, documents, slips and memorandum that pertain to the business of lottery * * * contrary to the provisions of N.J.S. 2A:98-1 and N.J.S. 2A:98-2."
As far as the record before us reveals, White was not apprehended by the police and, on May 15, 1961, the opening day of the trial under the aforesaid indictments, a severance was granted as to him on the application of the State. The indictments as to the remaining defendants were "consolidated for the purpose of trial." The jury returned a verdict acquitting defendant Edna Kaiser under the two indictments against her, and convicting appellants on each of the four indictments aforesaid.
On this appeal appellants urge several grounds for reversal of their convictions. They are that (a) defendant's motion for judgment at the close of the State's case (R.R. 3:7-6) with reference to the indictments charging maintenance of a nuisance and possession of lottery papers should have been granted; (b) although no motion was made at the end of the State's case with reference to the remaining two indictments, appellants contend that the State "failed to prove the basic elements of both of these offenses," and we should recognize such failure under the plain error rule (R.R. 1:5-1(a), 2:5); (c) the "verdicts were contaminated by the unwholesome demeanor of Susan Kaiser," hereinafter more particularly described; (d) Susan Kaiser was denied "due process of law," in violation of "Art. 1, Sec. 1" of the Constitution of this State and "the first section of the Fourteenth Amendment to the Constitution of the United States," by "unfairly and improperly" compelling
her to stand trial, and by the trial court's action in that regard, allegedly based in part on "matters dehors the record"; and (e) that the trial court failed "to instruct the jury on all the essential questions of law involved in the case."
Resolution of the points raised by this appeal requires a detailed recital of the facts.
On May 12, 1961 defense counsel moved that the case against Susan Kaiser (age 63) be continued "until such time as her condition improves enabling her to withstand the rigors of trial." In support of his motion counsel relied upon the reports of Dr. Solomon Hirsch and Dr. Raphael Gilady, the physician for the County of Bergen. The latter had examined appellant pursuant to court order.
Dr. Hirsch's report, dated April 10, 1961, was as follows:
"Mrs. Susan Kaiser is under medical care for a chronic Pulmonary Emphysema. Because of a superimposed respiratory infection it is dangerous at present to expose her to the elements, or to any stresses and strains such as are encountered in court procedures."
Dr. Gilady's report, dated April 13, 1961 (after reciting in detail the extent of his physical examination of Susan Kaiser on that day, preceded by an outline of her family history and a statement of her complaints), contained his detailed findings, including the following:
"* * * Pulse regular, rate 80, small; * * * Heart -- the sounds * * * of fair muscular quality * * * no murmurs; * * * evidence of left ventricular hypertrophy; * * * Lungs -- showers of moist rales posteriorly in both lungs from the lower margin of the scapula to the base. The breath sounds, therefore, in that area are impaired. Anteriorly the breath sounds are bronchovesicular and no rales elicited. The costophrenic angles are clear on the right, cloudy on the left. * * * Liver, Gall Bladder, Stomach, Spleen, and Kidneys are not palpable; * * * Muscular System fair. Nervous System intact; Reflexes all hyperactive, nonpathological; * * * Blood Pressure -- 150/90."
He described his X-ray findings as follows:
"Both pulmonic fields show severely increased lung markings of vessels and bronchi, especially in the bases. In the left lower lobe and costophrenic angles there is total density indicating thickened pleura and fibrosis of the lung. The right costophrenic angle is normal. Heart shows a degree of left ventricular enlargement and an obliterated cardiophrenic angle probably due to bronchiectasis."
Most of the conditions revealed by the electrocardiographic examination were characterized in the report as normal, but certain others lead to Dr. Gilady's conclusion hereinafter set forth.
Additional findings were:
"Blood Count * * * perfectly normal; * * * Urine Examination * * * normal; * * * Blood Chemistry, Serum Cholesterol is elevated to 305 milligrams. (The normal is between 150 to 250 milligrams.)"
Dr. Gilady's conclusions were as follows:
"This woman is suffering from acute pulmonary disease superimposed on chronic emphysema and early bronchiectasis.
She also has a hypercholesteremia. (High serum cholesterol in the blood.)
The electrocardiogram shows definite evidence of myocardial (heart muscle) insufficiency.
She also has a mild hypertension. (Elevation of blood pressure.)
All the above indicates that she is chronically ill and there is no question that the ordeal of the prolonged court procedure would be deleterious to her health. She should particularly not be allowed to come out in inclement weather, because of the acute lung involvement. (The wet lungs -- the moist rales in the bases of both lungs.)"
The trial court, after viewing the medical reports and after stressing the many phases of Dr. Gilady's detailed examination which revealed normal physical conditions, concluded that defendant was able to stand trial and denied defendant's application for a continuance. In doing so it stated:
"Under this diagnosis and conclusion if the court were to grant your request, this defendant would never be able to stand trial for the charges against her and the conclusion in the last paragraph is
very interesting. She is chronically ill and there is no question that the ordeal of a prolonged court procedure would be deleterious to her health."
The court added that, upon receiving Dr. Gilady's report, it had asked him what he meant by a "long protracted trial," and that Dr. Gilady's response was, "A case that would take three or four or five or six weeks." The record shows that the trial occupied four court days.
On the morning of May 15 the trial commenced as stated, and after approximately one hour had elapsed and during the empaneling of the jury, Susan Kaiser fainted. A Dr. Laytham was summoned and examined her. Upon the conclusion of his examination of defendant he was questioned by the court at side-bar. Defense counsel objected to this procedure and the trial court thereupon permitted counsel to be present but refused to permit him to then question the doctor. At the conclusion of the side-bar conference the judge, addressing himself to the ...