Opinion
Submitted May 4, 1943 —
Decided June 24, 1943.
1. A reviewing court in a criminal case is not empowered to consider whether the evidence left a reasonable doubt in the minds of the jury.
2. On the trial of an indictment for criminal abortion evidence of the performance of other abortions is admissible on the question of intent.
On writ of error to the Essex County Court of Quarter Sessions.
Before BROGAN, CHIEF JUSTICE, and Justices BODINE and COLIE.
For the plaintiff in error, Ferdinand D. Masucci ( Samuel I. Kessler, of counsel).
For the defendant in error, William A. Wachenfeld, Prosecutor, Donal C. Fox, Assistant Prosecutor, and C. William Caruso, Special Assistant Prosecutor.
Edoardo Sturchio was convicted and sentenced to eighteen months at hard labor upon the trial of an indictment charging him with having caused and procured the miscarriage of one Geraldine Gauthier in contravention of the statute, R.S. 2:105-1.
The matter comes before this court upon strict writ of error, the assignments of error thereunder numbering thirty-nine, and also under R.S. 2:195-16, the specification of causes for reversal being identical with the assignments of error. Plaintiff in error has briefed but three points. First, that the state failed to prove beyond a reasonable doubt that the pregnancy ceased as a result of the defendant's acts. This point may not be raised on a review of a conviction where the entire record is brought up. The reviewing court is not empowered to consider whether the state of the evidence left a reasonable doubt in the minds of the jury. State v. Fischer, 97 N.J.L. 34. Second, that the verdict is contrary to the greater weight of the evidence. To justify an appellate court in reversing a conviction upon this ground, it must be clear that the verdict is the result of mistake, passion or prejudice. State v. Grace, 98 Id. 341. The evidence to support the charge named in the indictment was in sharp dispute on almost every point and, of course, the credibility to be accorded the witnesses was for the jury. There was plenary proof in the case from which the jury could find that Geraldine Gauthier was pregnant to the knowledge of the defendant, who, with intent to procure a miscarriage, used instruments upon her which terminated a pregnancy. Furthermore, Miss Gauthier, in the presence of two police officers of the Newark police department and the defendant, said: "That is Dr. Sturchio, the man who performed the abortion upon me," and the defendant, in the face of that charge, stood mute. A careful study of the record convinces us that the verdict was amply sustained by the evidence.
The third point argued by the plaintiff in error deals with testimony relative to the conversations and transactions between Dr. Sturchio and one Mae Faith Turchon. The plaintiff in error contends that the admission, over objection, of this evidence was error in that it tended to prove another and distinct crime from that for which the defendant was on trial. Assuming that the evidence was sufficient to permit the inference that the defendant had performed an abortion of the witness, nevertheless it was admissible. Where, as here, the element of intent is a necessary ingredient of the crime charged, evidence of the performance of abortions, whether prior or subsequent, tend to negative an innocent intent. 2 Wigmore on Evidence, § 359. Cf. 1 C.J.S., p. 336, § 28; 1 Am. Jur. tit. "Abortion," § 42; Clark v. People (Ill.), 79 N.E. Rep. 941; Commonwealth v. Blair, 126 Mass. 40; State v. Fay, 127 N.J.L. 77.
Our examination of the case leads to a finding that the plaintiff in error suffered no manifest wrong or injury. The judgment of conviction is affirmed, with costs.