Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Defendants appeal from a judgment of conviction of criminal abortion (N.J.S. 2A:87-1) entered on a jury verdict in the County Court. The indictment charged that on December 2, 1960 defendants "with intent to cause and procure the miscarriage" of Pauline Fealey unlawfully used "in and upon her divers instruments and means unknown."
The proofs offered by the State established that on the night of December 2, 1960, and for some time prior thereto, members of the Prosecutor's office assisted by officers of the Rutherford Police Department had the home of Doctor and Mrs. Doyle under surveillance. Shortly after midnight they saw Pauline Fealey and a companion, Rosemarie Intrieri, leave the residence and drive off in Mrs. Fealey's automobile. Mrs. Intrieri was the driver. Some of the prosecutor's detectives followed the Fealey car and after travelling a short distance, stopped it. At the request of the officers the women identified themselves. Mrs. Fealey gave a statement to the police to the effect that she had gone to Doctor Doyle for the purpose of being aborted and was then taken to the office of the county medical examiner by a policewoman in the group, where she was examined by Doctor Arthur W. Greenfield, assistant county physician.
Meanwhile, Mrs. Intrieri had been taken back to the Doyle residence where, following a conversation with the officers, she rang the doorbell. When a young boy opened the door the police shoved Mrs. Intrieri aside and raided the Doyle's living quarters on the second floor. The police identified themselves and served a search warrant on Dr. Doyle. This occurred at 12:10 A.M.; by its terms the warrant had expired at midnight. In the course of an exhaustive search of the apartment they seized a number of items of surgical and medical equipment, as well as numerous other articles which might be of aid in the performance of an abortion. When the search was completed the Doyles were taken to the police headquarters and booked on the charge for which they were subsequently indicted.
At the trial Pauline Fealey testified that she became aware that she was pregnant when the cycle of her menstrual periods was disrupted, and she suffered from morning nausea. She had met Mona Doyle socially and knew her husband was a doctor. She called Mrs. Doyle and asked if the doctor could help her. She was told by Mrs. Doyle to call back in a week. When she did, an appointment was arranged for December 2, 1960. She agreed with Mrs. Doyle to pay a fee of $150.
She testified further that on the night of December 2 she and Mrs. Intrieri drove to the Doyle home. When they arrived Dr. Doyle was in the kitchen. Mrs. Fealey, Mrs. Intrieri and Mrs. Doyle went into the living room where three women relatives of the Doyles, and a young boy were watching television. Shortly, these persons left and Dr. Doyle joined Mrs. Fealey, Mrs. Intrieri and his wife in the living room. They continued to watch television, meanwhile having some highballs, prepared with whiskey which Mrs. Fealey had brought with her. During this time Dr. Doyle gave Mrs. Fealey a pill.
Shortly thereafter Mrs. Doyle told her to undress. She went to the bathroom, did so and then went to the kitchen. Upon the instructions of either Dr. Doyle or Mrs. Doyle she lay on the kitchen table which had been covered with a white
sheet. She was nude. Mrs. Intrieri stood at her right side, Mrs. Doyle at her left. They held up her legs and she was then so positioned that her vagina was at the edge of the table. Dr. Doyle stood directly in front of her and manually examined her internally. She was then given an anesthetic by Mrs. Doyle and lost consciousness.
When she was awakened she was in another room lying on a couch. She was then clothed in a white hospital gown and was covered by a blanket. A little later Mrs. Intrieri came into the room. Mrs. Fealey then noticed that she was flowing and that she was wearing a sanitary napkin which she had not brought with her. Aided by Mrs. Intrieri she went to the bathroom and dressed. They then joined the Doyles in the kitchen where they had coffee, crackers and cheese and cake. She noticed that the table upon which she had lain when the abortion was performed had been removed. There was a "general conversation" after which she was given a quantity of pills by Dr. Doyle to be taken every two hours; the doctor told her they were to prevent hemorrhage. The doctor and Mrs. Intrieri left the room, after which she gave Mrs. Doyle $150 in denominations of ten and twenty dollar bills. She and Mrs. Intrieri then left the apartment; Dr. Doyle accompanied them to the street holding her right arm.
It is clear from the testimony of Mrs. Intrieri that Mrs. Fealey was on the table for about 35 or 40 minutes during which time the doctor performed an operation on her private parts which resulted in a substantial extravasation of blood. Additionally, she corroborated Mrs. Fealey's account of happenings before and after the operation.
Dr. Greenfield testified that at the request of the prosecutor's office he examined Mrs. Fealey externally and vaginally at about 1:00 A.M. on December 3, 1960. The doctor concluded that Mrs. Fealey had been pregnant for about four or five weeks and that she had probably been aborted within a few hours of the time he examined her. The doctor also identified several of the objects which had been seized in the raid. He said of them that each served a legitimate medical
or surgical purpose, but that they could also be used in the performance of an abortion.
The defense contended through the testimony of Dr. and Mrs. Doyle, that Mrs. Fealey had come to the doctor only for the purpose of being fitted for a diaphragm and that upon discovering that Mrs. Fealey was flowing the doctor informed her that he could not examine her in that condition. They denied that he had performed any surgical operation upon Mrs. Fealey. Dr. Doyle said that if she had been recently aborted it was because of medication that she had administered to herself for that purpose.
Defendants now urge that the trial court erred in (1) denying defendants' motion for a judgment of acquittal, (2) denying defendants' motions for a mistrial, (3) in certain rulings on the admissibility of evidence and in the conduct of the trial, and (4) that illegal search and seizure was employed to procure evidence.
The test on a motion for judgment of acquittal is whether there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Rogers , 19 N.J. 218, 231-232 (1955); State v. Picciotti , 12 N.J. 205, 208-209 (1953); State v. Tassiello , 75 N.J. Super. 1, 4 (App. Div. 1962), certif. granted 38 N.J. 315 (1962). The evidence offered by the State, as outlined hereinabove, plainly brought the case within this controlling principle and, therefore, the motion for a judgment of acquittal was properly denied.
Defendants moved for a mistrial at four stages of the trial. The motions were denied. It is well settled that the direction of a mistrial in a criminal case rests in the sound discretion of the trial judge. It is to be exercised only in extraordinary and striking circumstances in order to prevent a failure of justice. State v. Steneck , 118 N.J.L. 268, 276 (Sup. Ct. 1937), affirmed 120 N.J.L. 188 (E. & A. 1938), cert. denied 30 ...