Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d. Leonard, J.A.D. (dissenting).
Defendants John J. Moretti and Marietta Schmidt appeal from a conviction of unlawful conspiracy to commit the statutory crime of abortion on one Sylvia Swidler, contrary to N.J.S. 2A:98-1, N.J.S. 2A:98-2 and N.J.S. 2A:87-1. Lawrence Gianettino was also convicted under the same charge but died shortly after the trial.
The State's case may be summarized as follows.
Sylvia Swidler, a special investigator employed in the Essex County Prosecutor's office, was used as a decoy to arrange through defendants Schmidt and Moretti to have an abortion to terminate an allegedly unwanted pregnancy. The abortion was to have been performed by defendant Gianettino, an inspector for the New Jersey State Board of Barber Examiners. Gianettino, by appointment, arrived at Mrs. Swidler's home with a bag of instruments to perform the abortion. As soon as Mrs. Swidler paid him $600 in marked money, detectives who were secreted in and about the house arrested him.
The State concedes, and Mrs. Swidler testified, that she was not actually pregnant at the time.
A principal argument made by both defendants on this appeal is that there cannot be a criminal conspiracy where attainment of the unlawful object thereof is inherently impossible. It is pointed out that in this State an essential element of the crime of abortion is the pregnancy of the woman. See State v. Colmer, 45 N.J. Super. 236 (App. Div. 1957). Since Mrs. Swidler was not pregnant and
could not have been aborted, defendants argue that it was legally impossible for defendants to have conspired to commit such act.
We conclude that Mrs. Swidler's nonpregnancy was not a defense to the charge of conspiracy herein. She could have been pregnant, as defendants manifestly thought she was, so that attainment of the unlawful object was not inherently impossible. The essential elements of the statutory crime of conspiracy are the criminal agreement and overt act in furtherance thereof. State v. Dennis, 43 N.J. 418 (1964). Defendants' corrupt plan and overt acts towards its accomplishment were no less anti-social, even though Mrs. Swidler was not enceinte. Cf. State v. Meisch, 86 N.J. Super. 279 (App. Div. 1965), certification denied, 44 N.J. 583 (1965).
Defendants refer to the dictum in In re Vince, 2 N.J. 443, 449 (1949), to support their contention. However, in that case the court was concerned with the question whether the woman upon whom the abortion was performed could herself be charged with a crime.
There are cases in other jurisdictions which hold that there cannot be an unlawful conspiracy where there is a legal impossibility to commit the substantive act. Ventimiglia v. United States, 242 F.2d 620 (4 Cir. 1957); O'Malley v. United States, 227 F.2d 332 (1 Cir. 1955); Macias v. People, 421 P. 2 d 116 (Colo. Sup. Ct. 1966). However, these decisions are not pertinent since here there was no legal impossibility to commit the substantive act. See Craven v. United States, 22 F.2d 605 (1 Cir. 1927); certiorari denied, 276 U.S. 627, 48 S. Ct. 321, 72 L. Ed. 739 (1928); Beddow v. United States, 70 F.2d 674 (8 Cir. 1934).
Defendant Moretti also contends that the New Jersey abortion statute, N.J.S. 2A:87-1, is so vague and indefinite that it "suffers a constitutional infirmity." This contention is based upon the opinion of Chief Justice Weintraub ...