State v. Lisena.

• Decision Date: 09 December 1943
• Docket Number: No. 3.,3.
• Citation: 34 A.2d 737,131 N.J.L. 48
• Parties: STATE v. LISENA.
• Court: New Jersey Supreme Court

131 N.J.L. 48

34 A.2d 737

STATE

v.LISENA.

No. 3.

Supreme Court of New Jersey.

Dec. 9, 1943.

Michael A. Lisena was convicted of maliciously, and with intent to procure a miscarriage of a woman then pregnant with child, using upon such woman divers instruments and means to the grand jurors unknown, and he brings error.

Judgment affirmed.

See, also, 32 A.2d 513, 21 N.J.Misc. 180.

Syllabus by the Court.

1. An indictment, which charges the offense in the language of the statute, is good.

2. The refusal to quash an indictment is addressed to the discretion of the court and is not reviewable on strict writ of error or under R.S. 2:195-16, N.J.S.A.

3. A statement made by a patient to a physician, as to the cause of her injury, is not admissible in evidence.

4. The review under R.S. 2:195-16, N.J.S.A., is confined to the record returned pursuant to the statute.

October term, 1943, before BROGAN, C. J., and BODINE and COLIE, JJ.

Bozza & Bozza and Frank B. Bozza, all of Newark, for plaintiff in error.

William A. Wachenfeld, James L. McKenna, and C. William Caruso, all of Newark, for defendant in error.

BODINE, Justice.

Plaintiff in error was convicted under an indictment which charged that he ‘maliciously and without lawful justification, with intent to cause and procure the miscarriage of * * *, a woman then pregnant with child, did use in and upon the said * * * divers instruments and means to the Grand Jurors aforesaid unknown.’

This indictment is based upon R.S. 2:105-1, N.J.S.A. It follows the language of the statute in charging the offense. Obviously, a motion to quash the indictment was properly denied. State v. Morris, 98 N.J.L. 621, 121 A. 290, affirmed 99 N.J.L. 526, 124 A. 926; State v. Lewandowski, 121 N.J.L. 612, 3 A.2d 871.

A motion to quash an indictment is addressed to the discretion of the court and is not reviewable on strict writ of error or under R.S. 2:195-16, N.J.S.A.; State v. Grossman, 94 N.J.L. 301, 110 A. 711, affirmed 95 N.J.L. 497, 112 A. 892.

The verdict was not against the weight of the evidence. The State evidence was clear and convincing. The injured woman gave her testimony in a concise manner. In many essentials it was corroborated by the physicians who attended to her needs at St. Michael's Hospital in Newark. The officers, who took the plaintiff in error to the hospital, testified that she identified him and that he did not deny the charge. At no time, except by the technical plea of not guilty, was there ever a denial of any of the particulars proved by the State. Plaintiff in error could have taken the witness stand but failed to do so, content apparently to rely upon a somewhat flimsy alibi which the jury did not believe.

In the course of the examination of one of the physicians who attended the woman at the hospital the following occurred:

‘When you say, Doctor, that you diagnosed the condition of * * * as that of an incomplete abortion, what do you mean by that, a criminal abortion, a criminal tampering? A. We do not have no-at least, you cannot tell by that that it was a criminal abortion.’

On redirect examination: ‘Q. What information did you get from her, Doctor? A. That she had it done. By whom we do not know. Of course, it had already been on the chart.

‘Q. These numerous causes that you mention, it also could have been caused by the insertion of an instrument into her vagina on June 20th? A. Without a doubt.

‘The Court: What do you mean by she had it done? What did she tell you?

‘The Witness: That it came from natural causes-it come through criminal--

‘Mr. Bozza: I object.

‘The Court: Strike out the word criminal. Through physical interference?

‘The Witness: Through physical interference.’

A motion was then made to strike out the question and the answer, which was denied, the trial court saying:

‘It was on record she had it done. That did not convey a thorough understanding to my mind and I wanted to have it cleared up and settle the uncertainty, so I think I had a perfect right to do it and overrule the motion. Counsel: Well, I did not hear it. The Court: I do not like your saying you did not hear it. You were here and if you did not hear the question it is up to you to ask what he said.

‘Counsel: Unfortunately, I was consulting with the accused.

‘The Court: It is unfortunate for you to try to do two things at once, or anybody else, and if you did not hear what the Prosecutor was asking, why, that is not my affair.

‘Counsel: My attention was distracted. Will you forgive me?

‘The Court: I have nothing to forgive. You were distracted by talking to your own client and you did not hear him and let it go by without hearing it, and I asked the question. You wanted to take advantage of that situation and you now do.’

Clearly, the statement by the patient to the physician as to the cause of her injury was inadmissible as evidence to prove that fact. State v. Gruich, 96 N.J.L. 202, 114 A. 547. But it does not seem to us that the ruling was harmful because by competent evidence the abortion was proved.

The court, in the exercise of a sound discretion, limited the cross examination of the complaining witness to the scope of the direct examination. There could be no useful purpose in probing into matters which had no bearing on the charge made by the State. The exclusion of such evidence...