State v. King.

• Decision Date: 21 December 1945
• Docket Number: No. 20.,20.
• Parties: STATE v. KING.
• Court: New Jersey Supreme Court

133 N.J.L. 480

44 A.2d 901

STATE

v.KING.

No. 20.

Supreme Court of New Jersey.

Dec. 21, 1945.

Error to Court of Quarter Sessions, Camden County.

Hazel E. King was convicted of abortion, and she brings error.

Affirmed.

October term, 1945, before BROGAN, C.J., and PARKER and OLIPHANT, JJ.

Walter S. Keown and Raymond L. Siris, both of Camden, for plaintiff in error.

Gene R. Mariano, Pros. of the Pleas, of Camden, for defendant in error.

OLIPHANT, Justice.

This writ of error brings up for review the conviction of the plaintiff-in-error upon an indictment charging her with having committed an abortion. Catherine Walker, upon whom the act was allegedly committed, died.

The writ brings up for review the entire record of the proceedings in the case. R.S. 2:195-16, N.J.S.A. It is submitted on briefs without oral argument.

There are 24 assignments of error and 25 causes for reversal. Of these seven of the former and eight of the latter are not argued and will be considered as abandoned. Those remaining are briefed under eleven points.

Some time previous to trial a bill of particulars had been demanded by the defendant and answers were made thereto. On the trial day, just before the opening, plaintiff-in-error orally demanded more specific information than that contained in the answers. The first point made is that the trial court's denial of that demand for a more specific bill of particulars was error. Such a demand should have been made promptly and when not made until the case was moved for trial it was too late. State v. Claypoole, 137 A. 893, 5 N.J. Misc. 627, affirmed 104 N.J.L. 446, 140 A. 921. Even on the merits plaintiff-in-error was not entitled to have the demand granted. She had asked for the exact date and time when the instrument for bringing about the abortion was used. The answer was given as ‘some time or times between October 29, 1944, and November 8, 1944,’ which was a sufficient particularization. The date of the offense was not of the essence of the crime. The State could have offered proof that the offense charged was committed on any day within the period not covered by the Statute of Limitations. State v. Shapiro, 89 N.J.L. 319, 98 A. 437; State v. Butler, 147 A. 496, 7 N.J.Misc. 868; reversed on other grounds, 107 N.J.L. 91, 150 A. 394.

The second point is that the Court erred in refusing to grant defendant's motion for a directed verdict of acquittal and it rests on two premises, that there was no evidence from which the jury could find that Miss Walker was pregnant or that an instrument had been used upon her. We find no merit in the argument. There was evidence of sexual intercourse, cessation of menses and testimony of a medical witness as to the probability of pregnancy. Miss Walker died of peritonitis and in the opinion of another medical witness that was caused by an abortion. There was ample evidence that an instrument was used to perform that abortion. If there is legal evidence from which an inference of guilt can be legitimately drawn there cannot be a direction of acquittal. State v. Geiger, 129 N.J.L. 13, 28 A.2d 57, aff'd 129 N.J.L. 518, 30 A.2d 406.

It is next argued that the Court erred in permitting various character witnesses produced by the defendant to answer, over objection, the following question on cross-examination:

‘If you had known she had been indicted for the crime of abortion in the year 1939, here in Camden County, subsequently tried in the criminal court and found not guilty, would your opinion of her reputation be exactly the same as it is today?’

The objection was made in the following language:

‘I object. I didn't ask this man his opinion of this defendant. I asked him what her reputation was.’

To attack the credibility of a witness generally, it may not be asked of him whether his opinion would be changed if he had known that the defendant had previously been tried and acquitted of a similar charge as contained in the indictment on which the defendant was then being tried. On the previous indictment defendant stood as though she had never been indicted and a question such as the one propounded ascribes to an indictment a sinister aspect.

If a proper ground for the objection had been stated we conceive it should and would have been sustained by the learned trial judge. The fallacy of the argument is that no tenable ground was stated. The legal impropriety, the vice of the question was not made known to the court. The objection, therefore, was ineffectual and there was no error in it being over-ruled. It might be noted in passing that the same question asked of some witnesses was not objected to, and all witnesses of whom the question was asked replied that their opinion would not be changed.

The fourth and fifth points concern rulings upon evidence. As the record discloses that no proper grounds of objection were stated to the trial judge such are not now available on appeal. Rule 144, Supreme Court.

Plaintiff-in-error next complains concerning a question addressed by the Court to a medical witness. Here again no proper ground of objection was stated. What the Court was endeavoring to do was to clarify the testimony of the witness. It is the duty of the Court to examine a witness when it is deemed essential, in order to obtain a clear understanding of the testimony. Wharton's Criminal Evidence, Vol. 3,...