For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J. Weintraub, C.J. (concurring).
[52 NJ Page 184] Defendants John J. Moretti, Marietta Schmidt, and Lawrence Gianettino were convicted in the Essex County Court of conspiracy to commit an unlawful abortion on Sylvia Swidler. N.J.S. 2 A:98-1, 2; N.J.S.
2 A:87-1.*fn1 Gianettino died shortly after the trial. On the appeal of Moretti and Schmidt, the Appellate Division affirmed the conviction with one judge dissenting. 97 N.J. Super. 418 (App. Div. 1967). Moretti and Schmidt appealed to this Court under R.R. 1:2-1(b).
On the evidence the jury could find that Mrs. Schmidt arranged with Moretti, a physician, to have an abortion performed on Mrs. Swidler. The abortion was to be performed by Gianettino, an inspector for the New Jersey State Board of Barber Examiners. Unknown to the defendants, Mrs. Swidler was a special investigator for the Essex County Prosecutor's Office. Gianettino appeared at about eleven o'clock one evening at the Swidler home pursuant to an appointment with Mrs. Swidler. She paid him $600 in marked money and they went upstairs to her bedroom where the abortion was to be performed. As Gianettino removed instruments to perform the abortion from a bag he had brought with him, the police who had been secreted in the house arrested him. The State concedes that Mrs. Swidler was not pregnant.
It has been held that under our statute, N.J.S. 2 A:87-1, an essential element of the crime of abortion is that the woman
be pregnant. State v. Sturchio, 131 N.J.L. 256 (E. & A. 1943); State v. Colmer, 45 N.J. Super. 236, 243 (App. Div.), certification denied, 25 N.J. 44 (1957). The defendants contend that since it was impossible to commit an abortion upon Mrs. Swidler because she was not pregnant, they cannot be convicted of a criminal conspiracy to commit an abortion. The argument runs that if no violation of the law was to be accomplished by the act of the defendants, they cannot be held for conspiracy to do that act. The majority of the Appellate Division rejected this argument, while the dissenting judge found it to be ground for reversing the convictions.
The crime of conspiracy is distinct from the substantive offense which the conspirators plotted to commit. Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1181, 90 L. Ed. 1489, 1494, rehearing denied 329 U.S. 818, 67 S. Ct. 26, 91 L. Ed. 697 (1946). The essence of the statutory crime of conspiracy is the joining together of the conspirators with an unlawful intent. State v. Dennis, 43 N.J. 418, 423 (1964). It is this unlawful purpose upon which they agreed which makes a conspiracy punishable once any overt act is committed in furtherance of it. As Justice Heher said for this Court in State v. Carbone, 10 N.J. 329, 338 (1952): "The union is invested with a potentiality for evil that renders the plan criminal in itself, and punishable as such if an act be done to effect its object." Here, there can be no doubt that if, as the jury found, there was an agreement among the defendants, its purpose was to commit an unlawful abortion and the conspirators took substantial steps in an endeavor to accomplish this end. That, unknown to them, Mrs. Swidler was not in a condition to be aborted in no way negates their clearly manifested intent to commit a criminal act. Such concerted intent, coupled with an overt act, is punishable whether or not the contemplated crime is consummated. United States v. Bayer, 331 U.S. 532, 542, 67 S. Ct. 1394, 1399, 91 L. Ed. 1654, 1661, rehearing denied 332 U.S. 785, 68 S. Ct. 29, 92 L. Ed. 368
(1947). That a factor unknown to the conspirators makes it impossible for them to complete their intended crime in no way lessens the degree of culpability involved in the criminal combination. People v. Nathanson, 389 Ill. 311, 318, 59 N.E. 2 d 677, 680, certiorari denied, 325 U.S. 872, 65 S. Ct. 1412, 89 L. Ed. 1990 (1945) (holding that in a prosecution for conspiracy to commit an abortion it was not necessary to prove the woman's pregnancy);*fn2 Craven v. United States, 22 F.2d 605 (1 st Cir. 1927), certiorari denied, 276 U.S. 627, 48 S. Ct. 321, 72 L. Ed. 729 (1928) (holding that the defendant could be convicted of conspiring with others to smuggle imported liquor even though he had been deceived by the substitution of liquor of domestic origin).
The case has been argued as though, for purposes of the defense of impossibility, a conspiracy charge is the same as a charge of attempting to commit a crime. It seems that such an equation could not be sustained, however, because, as discussed above, a conspiracy charge focuses primarily on the intent of the defendants, while in an attempt case the primary inquiry centers on the defendants' conduct tending toward the commission of the substantive crime. The crime of conspiracy is complete once the conspirators, having formed the intent to commit a crime, take any step in preparation; mere preparation, however, is an inadequate basis for an attempt conviction regardless of the intent. See State v. Schwarzbach, 84 N.J.L. 268, 270 (E. & A. 1913). Thus, the impossibility that the defendants' conduct will result in the consummation of the contemplated crime is not as pertinent in a conspiracy case as it might be in an attempt prosecution. However, we need not pursue this point
since we are satisfied that even if we treat the present appeal as an attempt case the defense of impossibility ...