State v. Wilson

• Citation: 79 N.J.L. 241,75 A. 776
• Parties: STATE v. WILSON.
• Decision Date: 04 March 1910
• Court: United States State Supreme Court (New Jersey)

75 A. 776

79 N.J.L. 241

STATE

v. WILSON.

Supreme Court of New Jersey.

March 4, 1910.

Error to Court of Sessions, Essex County.

James W. Wilson was convicted of crime, and brings error. Affirmed.

The state's case, as a jury might find it from the testimony, was that a married couple visited Dr. Wilson, the plaintiff in error, to ascertain if the wife was pregnant, and, being told by him that she was, the wife wanted him to open up her womb so that she might not become a mother; that Dr. Wilson sent the woman to one Radford to do the work for her; that the woman went to Radford at an address given by Dr. Wilson, and that Radford on three occasions used instruments on her womb; that Radford had a conversation with Wilson over the phone about the matter; that Radford directed the woman to go back to Dr. Wilson for after treatment; and that after Radford had operated, he and Wilson met by appointment in a cafe to discuss the case.

The woman was in an early stage of pregnancy; i. e., the child was not quick. There was a severance, and, Wilson being tried separately, verdict and judgment went against him.

Argued November term, 1909, before GUMMERE, C. J., and GARRISON and VOORHEES, JJ.

Frank E. Bradner, for plaintiff in error.

Wilbur A. Mott, for the State.

GARRISON, J. The only question presented by this writ of error that calls for extended discussion is that raised by the motion to direct a verdict on the first count of the indictment which charged the defendant, together with one Stacy R. Radford, with the unlawful use of Instruments with intent to cause a miscarriage of a pregnant woman. The grounds of this motion were, first, that, if the defendant had aided and abetted Radford, it should have been so charged in the indictment; and, second, that, if the indictment be held good, the defendant cannot upon proof of aiding and abetting be convicted as principal, which is the charge of the indictment.

Neither of these points is well taken. The statute does not make aiding and abetting substantive offenses; hence the indictment should not charge them as such. As to the second ground, the defendant, if guilty under the testimony, could be convicted as principal. The present statute which was passed in 1872 (page 45) and is now the 119th section of the revised crimes act (P. L. 1898, p. 827) reads as follows:

"Any person who maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug or medicine or noxious thing; or who maliciously or without lawful justification, shall use any instrument or means whatever with the like intent, shall be guilty of a high misdemeanor and punished accordingly."

The offense set forth in this statute was not a crime at common law unless the child was quick. State v. Cooper, 22 N.J.Law, 52, 51 Am. Dec. 248.

It is therefore a misdemeanor created by statute, whose offense, as pointed out by Chief Justice Green in State v. Murphy, 27 N.J.Law, 112, is directed at the life or safety of the mother.

If it had been a felony at common law, the defendant must have been indicted as accessory. State v. Wyckoff, 31 N.J.Law, 65.

Being a misdemeanor, the defendant could not have been so indicted. State v. Seran, 28 N.J.Law, 519.

In this state crimes created by statute are misdemeanors or high misdemeanors according to the degree of punishment imposed. They are never felonies.

"The distinction between felonies and misdemeanors is not observed in our Criminal Code." (Depue, J.) Brown v. State, 62 N.J.Law, 666, 42 Atl. 811.

With the abolition of this distinction, we let go also of the technical distinction, peculiar to felonies, viz., that the principal must be present at the commission of the crime, and that an accessory must be absent. At common law in treason and in misdemeanors—that is to say, in the highest and the lowest grades of crime—this distinction never obtained. All concerned were treated as principals. The rule therefore as to misdemeanors is that all persons concerned therein, if guilty at all, are regarded as principals, and may be indicted, tried, and punished as such. 1 Ency. L. & P. p. 238.

The rule is not, as contended for by counsel, that a person whose conduct was such that, if the principal offense had been a felony, he would have been an accessory or aider or abettor, is not punishable at all if the offense be a misdemeanor. On the contrary, the rule is that one who would have been an aider or abettor—i. e., an accessory before the fact—if the offense had been a felony, may be...