State v. Ellrich

• Decision Date: 26 June 1952
• Docket Number: No. A--150,A--150
• Citation: 10 N.J. 146,89 A.2d 685
• Parties: STATE v. ELLRICH et al. Appeal of WELCHER.
• Court: New Jersey Supreme Court

Page 146

10 N.J. 146

89 A.2d 685

STATE v. ELLRICH et al.

Appeal of WELCHER.

No. A--150.

Supreme Court of New Jersey.

Argued June 16, 1952.

Decided June 26, 1952.

Frank G. Schlosser, Jersey City, argued the cause for appellant.

Paul T. Huckin, Deputy Atty. Gen., argued the cause for the State (Harry L. Towe, Deputy Atty. Gen., Acting Prosecutor of Bergen County, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The appellant, having been convicted by a jury on an indictment for abortion, appeals, claiming he did not instigate the chief actor to perform the unlawful operation and accordingly is not criminally responsible and a judgment of acquittal in his favor should have been ordered. He also alleges the verdict was against the weight of the evidence, there was error in the admission and rejection of certain testimony, in the charge of the court and in its refusal to charge as requested.

A young, single woman residing in Somerville, accompanied by her aunt, visited the defendant, a practicing physician, at his office, 7900 Hudson Boulevard, North Bergen. The young lady told him she was pregnant and asked his help. He refused but 'gave me the name of a person who perhaps could help me. He wrote a name telephone number on a slip of paper and told me to go across the street to a drugstore, I believe it was, and to call this number and say that I was calling from 7900 Hudson Boulevard.' The name and number were those of Jean Ellrich.

The woman followed the instructions and as a result of her telephone call she and her aunt went to the Ellrich home in Fairview and made arrangements with him and his wife to have the operation performed about two weeks later. They paid a fee of $800. She testified 'he performed the abortion or attempted to 'but the proceedings were interrupted by the arrival of the police, who presumably took all present into custody. At their request, a physician made an examination of the patient and testified there had been an attempted abortion which had not been successfully completed.

Jean Ellrich and his wife, Mary, who were also indicted, withdrew their pleas of not guilty and pleaded non vult on the day of the defendant's trial. The defendant did not take the stand in his own defense nor was any evidence on his behalf offered. The jury returned a verdict of guilty, sentence was imposed, and from the judgment so rendered this appeal is taken and is certified here on our own motion.

The appellant insists the mere giving of the name and address of the one who would perform the unlawful operation does not constitute him an accomplice under our law. As he expresses it, 'to incur criminal responsibility under the abortion statute as it is worded, something more than a conversation with the woman is required.'

We do not feel called upon to answer so narrow an inquiry, as in our conception of the case the facts so admitted are embellished with a myriad of circumstances the reasonable and logical inferences of which spell out quite clearly and convincingly a criminal concert of action.

Guilty knowledge and a desire for concealment are permissible inferences from the prohibition against the using of the defendant's telephone and the specific instructions to use the pay telephone 'across the street.' The precaution of using a street address instead of a name to introduce the person making the call implies a knowledge of the criminal nature of the transaction and evinces a pre-arranged code between the defendant and Ellrich by which the latter could identify the forwarding agent; while the long journey from Somerville to North Bergen by the victim intimates knowledge that her quest, apparently difficult of accomplishment elsewhere, would be successful here. By referring the patient to a layman, the defendant signified a consciousness that the help sought was not medical treatment or prenatal care but was instead what actually happened.

If the defendant personally arranged with the abortionist for the performance of the illegal operation, he would admittedly be guilty. Likewise, one who directs a woman, under the circumstances here proven, to a third party for the purpose of having such an operation performed, aids and abets in the offense and may be found by the jury to have acted in concert with the chief offender and so be guilty as a principal.

'One is an 'aider and abettor' in the commission of a crime where he was an active partner in the intent which was the crime's basic element.' Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (Sup.Ct.1937).

The term has been defined in similar language in many jurisdictions. Robertson v. State, 23 Ala.App. 267, 125 So. 60 (Ct.Apps.1929); Boggs v. Commonwealth, 153 Va. 828, 149 S.E. 445 (Sup.Ct.Apps.1929); Shelton v. Commonwealth 261 Ky. 18, 86 S.W.2d 1054 (Ct.Apps.1935); Pearce v. Territory, 11 Okl. 438, 68 P. 504 (Sup.Ct.1902).

'In misdemeanors, all who aid, abet, or participate are principals, and all are equally guilty.' Engeman v. State, 54 N.J.L. 247, 23 A. 676, 679 (Sup.Ct.1892); State v. Wilson, 79 N.J.L. 241, 75 A. 776 (Sup.Ct.1910), affirmed 80 N.J.L. 467, 78 A. 144 (E. & A.1910).

A defendant may be convicted of a misdemeanor under an indictment charging him with the actual commission of the criminal act although he was not personally present and would, in the case of a common law felony, be liable only as an accessory. The reason set forth in State v. Wilson, supra, and State v. Riccio, 90 N.J.L. 25, 100 A. 187, 188 (Sup.Ct.1917), in both of which the factual situation is similar to the case Sub judice, is 'that such an indictment charges the defendant according to the legal effect of the offense, and therefore the defendant is, in legal effect, guilty of using the instrument for the criminal purpose.'

The applicable rule recognized by our courts is stated in 1 Am.Jur., Abortion, sec. 8, p. 134:

'The accused may be convicted as a principal even though it was not shown that he himself handled the instrument that was used if he was present aiding and assisting in the operation for the purpose of procuring the miscarriage and if anyone else was using the instrument for that purpose. And though the accused was absent at the time that the act was performed, he has been held punishable where he counseled, induced and procured the crime to be committed.'

Here the victim's testimony that she had no prior acquaintance with the Ellriches and met them only as a result of their name and phone number being supplied by the defendant is nowhere challenged or denied. It is not even suggested that she was referred to them for any purpose other than the illegal operation that was subsequently attempted. The defendant was an essential link and, apparently, a conscious one in the chain of events leading up to the commission of the offense. There is sufficient evidence of concerted action in the record to sustain the verdict reached by the jury.

The appellant asserts there was error in admitting testimony concerning the...