In Re Vince.

• Decision Date: 30 June 1949
• Docket Number: No. A-251.,A-251.
• Citation: 67 A.2d 141
• Parties: In re VINCE.
• Court: New Jersey Supreme Court

67 A.2d 141

In re VINCE.

No. A-251.

Supreme Court of New Jersey.

Argued May 23, 1949.

Decided June 30, 1949.

COPYRIGHT MATERIAL OMITTED.

Certified to Superior Court, Somerset County, Law Division.

Proceeding in the matter of Lillian Del Gobbo Vince, charged with criminal contempt of court. On certification to review an order discharging an order to show cause.

Order reversed and cause remanded for further proceedings in conformity with opinion.

T. Girard Wharton, Prosecutor of the County of Somerset, Somerville, argued the cause for petitioner, State of New Jersey.

John V. R. Strong, New Brunswick, argued the cause for respondent (Strong & Strong, New Brunswick, attorneys).

The opinion of the court was delivered by

BURLING, J.

This matter comes before us on certification granted upon the application of the State to review an order of the Law Division of the Superior Court, Somerset County, discharging an order to show cause why the respondent, Lillian Del Gobbo Vince, should not be ordered to answer certain questions propounded to her while a witness before the Somerset Grand Jury. The facts are not in dispute.

On June 10, 1948 the respondent, a married woman who had separated from her husband a short time previously, was admitted to a hospital in Somerville with a high fever and an infected vagina. As a result of the history given by her and of a physical examination, the attending physician determined that an abortion had been performed upon the respondent at a time when she was eight to ten weeks pregnant, although the child had not yet quickened. The same physician had examined respondent on May 14, 1948, at which time he had diagnosed probable pregnancy of five or six weeks duration. Respondent was subsequently interrogated in the County Prosecutor's office, at which time she stated that a criminal abortion had been performed upon her by two persons.

On September 21, 1948, respondent appeared before the Grand Jury of Somerset County in compliance with a subpoena directed to her and there was propounded to her a series of questions relating to her pregnancy and the commission of an abortion upon her. She refused to answer on the ground that the answers might tend to incriminate her. The Prosecutor then filed a petition with the Law Division of the Superior Court and obtained an order to show cause why she should not be compelled to answer the questions propounded or, upon her refusal, be adjudged guilty of contempt. On the return of the rule the respondent advanced the proposition that she was entitled to the privilege of refusal to answer upon the ground that the answers might tend to incriminate or tend to disgrace her. On December 22, 1948 the court below rendered an opinion deciding that the respondent should not be compelled to answer on both grounds and ordered the rule discharged. We granted certification upon the petition of the State because the questions involved were of great public importance. Rule 1:5-3(b).

The issue thus squarely presented is whether a woman upon whom an abortion is allegedly performed is privileged to refuse to answer material and relevant questions propounded to her while a witness, basing such refusal upon the ground that such answer might tend to incriminate or degrade her. The respondent's refusal in the instant case was justifiable if either of the two grounds advanced are sound. Parenthetically it may be noted that, of necessity, the refusal based upon the first ground involves only the question of a woman upon whom an abortion has been performed while the second ground is broader and is applicable to any witness.

No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty. R.S. 2:97-7, N.J.S.A. We need not enter into a discussion of the common law rule in view of the mandate of the statute except to note that the statute is merely declaratory of the common law. Fries v. Brugler, 12 N.J.L. 79, 82, 21 Am.Dec. 52 (Sup. Ct. 1830). This privilege, while existent at the common law is a creature of the public policy of this State and is not required by the 14th Amendment to the Constitution of the United States. Adamson v. California, 332 U.S. 46, 54, 67 S.Ct. 1672, 91 L.Ed. 1903, 1910, 171 A.L.R. 1223 (U.S.S. Ct. 1947). The privilege against self incrimination contained in the Fifth Amendment to the Constitution of the United States only applies to the Federal government and not to the individual states. Adamson v. California, supra; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, 112 (U.S.S. Ct. 1908). Nor is a similar provision to be found in the Constitution of this State. Respondent's contentions that her constitutional rights were infringed are therefore without merit.

Respondent would only be justified in claiming the privilege against self incrimination if, as a result of her testimony, she might be prosecuted for a violation of the criminal laws of this State. It becomes necessary, therefore, to ascertain what prosecution, if any, could ensue as a result of answers to the propounded questions. It is apparent that the only possible crimes with which respondent might be charged are common law abortion, abortion under R.S. 2:105-1, N.J.S.A., and conspiracy to commit abortion. The common law crime of abortion is not committed unless the mother be quick with child. A review of common law authorities is unnecessary in view of the discussion of Mr. Chief Justice Green in State v. Cooper, 22 N.J.L. 52, 51 Am.Dec. 248 (Sup. Ct. 1849). Since respondent was not quick with child at the time of the alleged abortion she cannot be indicted for the common law crime or for conspiracy to commit common law abortion and any claim of privilege grounded upon the supposition that she can be so indicted is without merit.

Following the decision in State v. Cooper, supra, the legislature, in 1849, adopted the act of March 1, 1849, Nix. Dig. 177, Sec. 103. This statute, with some few alterations not here material, subsists today as R.S. 2:105-1, N.J.S.A., and 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:

‘a. Administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine or noxious thing; or

‘b. Use any instrument or means whatever-

Shall be guilty of a high misdemeanor.

‘If as a consequence thereof, the woman or child shall die, the person committing the offense shall be punished by a fine not exceeding five thousand dollars, or by imprisonment at hard labor not exceeding fifteen years, or both.’

While it has been held that the statute does not require the quickening of the child, State v. Loomis, 89 N.J.L. 8, 97 A. 896 (Sup. Ct. 1916) affirmed 90 N.J.L. 216, 100 A. 160 (E. & A. 1916) it was long ago decided that, in view of the wording of the statute, the woman could not be held to be either a principal or an accomplice. State v. Murphy, 27 N.J.L. 112, 114 (Sup. Ct. 1858); State v. Hyer, 39 N.J.L. 598, 600 (Sup. Ct. 1877). The reason for the rule was explained by Mr. Chief Justice Green, who wrote the opinion in State v. Cooper, supra, in State v. Murphy, supra as follows: At page 114 of 27 N.J.L.: ‘Nor does the statute make it criminal for the woman to swallow the potion, or to consent to the operation or other means used to procure an abortion. No act of hers is made criminal by the statute. Her guilt or innocence remains as at common law. Her offence at the common law is against the life of the child. The offence of third persons, under the statute, is mainly against her life and health. The statute regards her as the victim of crime, not as the criminal; as the object of protection, rather than of punishment.’

The statute and construction thereof make it plain that a woman who performs an abortion upon herself or consents to its performance upon her by others is chargeable criminally only if the child were quick, a factor lacking in the instant case.

Moreover, complete protection is afforded the woman by R.S. 2:105-2, N.J.S.A., which reads as follows: ‘Any person who shall cause or attempt to cause the miscarriage of a pregnant woman shall be a competent witness, and may be compelled to testify against any other person charged with so offending, but the testimony of such person given in any such case shall not be used in any prosecution, civil or criminal, against the person so testifying.’

It is true that the statute does not expressly state that the testimony of the pregnant woman shall be compellable. However, we think it plain that she is to be included in the category of ‘Any person who shall cause or attempt to cause’ an abortion. Abortions are caused with and not against the will of the prospective mother.

Further, R.S. 2:105-1, N.J.S.A., and its companion section R.S. 2:105-2, N.J.S.A., which affords limited immunity against the use of their testimony against persons testifying against one charged with having committed the crime of statutory abortion, provide a clear expression of policy in aid of and to facilitate the detection and prosecution of those engaged in criminal abortion. The failure of the statutes to condemn the participation of the subject woman in an abortion performed upon her is plain evidence of an affirmative legislative policy to leave her acquiescence unpunished. Compare Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 77 L.Ed. 206, 211, 84 A.L.R. 370 (U.S.S.Ct.1932). The legislature was obviously aware of the fact that in the normal case, it is only through the cooperation and testimony of the subject woman that the abortionist could be ferreted out and convicted. Were we to hold that the subject woman is amenable to prosecution either for conspiracy to commit abortion or for solicitation such determination would fly in the face of and constitute an unwarranted contravention of...