Appendix — Moretti v. New Jersey

; APPENDIX, A.

Judgment and Mandate on Affirmance of the

- Supreme Court of New Jersey :

“It is hereupon ordered and adjudged that: the judgment -

of the Superior Court, Appellate Division is affirmed with.

‘costs and it is further ordered that the record be remitted

- to the Essex County Court to be there proceeded with in

fccordance with the rules and practice relating to that

court, consistent with the opinion of this Court.

WITNEsS the Honorable J oseph Weintraub, Chief Jus-

', » oer

iW udgment: Entered J une 28, 1968

Mandate Issued July 8, 1968:

A Tave Cop:

Joun H. GILDEA ;

Clerk of the Supreme Court

[1a]

>

APPENDIX B

Opinion of the Supteme Court of New Jersey

Argued June 4, 1968—Decided June 28, . 1968,

‘On appeal from the Superior Court, Appellate Division. i

Mr. George R. Sommer argued the cause for the defend-

ant-appellant, J ohn J. Moretti. -

Mr. Richard A. Walsir argued the cause for the defend-

' ant-appellant, Marietta Schmid (Mr. mage A.

} Pech, Jr., attorney).

. . Mr. James R. Zazzali, Assistant Prosecutor eee the

cause for the plaintiff-respondent (Mr. Joseph P.

- Lordi, Prosecutéc of Essex: County, sissre d Mr.

_, dames R. Zazezalt on the brief). - °

The opin?on of the Court was delivered by

Proctor, J.

Defendants. John J. Moretti, Marictta Schmidt, ma ’

Lawrence Gianéttino ‘were convicted in the Essex County

Court of conspiracy fo -commit an nlawful abortion. on

— sient N.J.S. 2A :98-1, 2; — 2A :87-11 Gi-

_ 1 The pertinent provisions of. thene statutes are:

| NAS. 24 :98-1:

“Any” 2 or more persons who ‘conspire: -

a. To commit a crime; or -

a. oe * .#

‘Are guilty of a> édnspiracy and. each shall be punished

. as for a misdemeanor.’’

( Footnote continued on following page) —

Ba: !

e215 : : Appendia B

anettino died shortly after the’ trial. Ow the asin of

Moretti and Schmidt, the Appellate Division affirmed the

conviction with- one judge dissenting. 97 N. J. Super. 418 - .

(App. Div. 1967). Moretti: and Schmidt steer to this

Court under R.R. 1:2-1(b).:

On the evidence the jury could find that ‘Mrs. Schmidt » -

arranged with Moretti, a physician, to have an abortion.

performed on Mrs. Swidler. The abortion was to be per-

' formed by Gianettino, an inspector for the New Jersey:

State Board eof Barber Examiners. Unknown~to the de- —

féndants, Mrs. ‘Swidler was a special investigator for the

Hssex County Prosecutor’s Office. Gianettino appeared at

about. éleven o’clock one ‘evening at the Swidler homie.

pursuant to an appointment with Mrs. Swidler. She paid |

him $600 in marked money and they went upstairs to. her

bedroom wilere the abortion was to be performed. ‘Gian-

_ (Footnote continued from preceding age)’ is” pee

- NWS. 2A 98-2: Re tents é %

‘*Except tor conspiracy “to commit arson, tuitions and _

entering or entering, burglary, kidnapping, manslaughter,

"| Pape, robbery or sodomy, no pefson shall be convicted and

punished for conspiracy unless some’ act, be done to effect —

the object thereof id 1 or more of the parties ‘thereto.”’ -

NTS. 2A :87-1:

‘Any person who, aittelonly or without lawful justifies

tion, with intent to cause or procure the miscarriage of a

pregnant woman, administers or prescribes or advises or

directs her to take or sw any poison, drug; medicine

or noxious thing, or uses any \ Jetetirinenrt or means what-

_u« ever, is guilty of a high misdemeanor. . |

_— i n“ :

“~ * * ° +.

e

ee

Appendia B

ettino removed lebhveiniabe to perform the abortion from

a bag he had brought with him, the police who had been

* secreted in the house arrested him. The es concedes ~

that Mrs. Swidler was not pregnant.

It has been held that under our statute, N.J S. 2A: :87-1,

an essential element of the crime of abortion is that the

_ woman be pregnant. State v. Sturchio, 131 N. J. L. 256 (E.

& A. 1943) ; State v. Colmer, 45 N. J. Super. 236, 243 (App.

Div.), cert. denied, 25 N. J. 44 (1957).* The defendants

contend that since it was impossible to commit an: abortion

upon Mrs Swidler beeause she ,was not pregnant, they |

‘cannot be convicted of a criminal conspiracy to commit

an aboftion. The argument runs that if no violation of

the law was to be accomplished by the act of the defend-

ants, they“ cannot be ‘held for conspiracy to do that act.

The majority of the Appellate Division. rejectgd this ar-

gument, while the dissenting: judge found it to be ground

for reversing the convictions.

The crime of conspiracy is distinct from the substantive

offense which the conspirators plotted to commit. Pink-

erton v. United States, 328 U.S. 640, 643, 90 L. Ed. gg

1494, reh. den. 329 U. 8S. 817, 91 L. Ed. 697 (1946).

essence of the statutory crime of conspiracy is the join.

' ing together of the conspirators with an unlawful intent.

State v. Dennis, 43 N. J. 418, 423 (1964). It is this un-

lawful purpose upon which they agreed which makes a

conspiracy punis ‘once any overt, act is committed

in furtherance of it. / As Justice Heher said for this Court

in State v. Carbone, 10 N. J. 329, 338 (1952): ‘“The union *

is invested with a potentiality for evil that renders the -

plan criminal in itself, and punishable as such if an act be .

done to effect its object.’’ Here, there can be no doubt

‘

s” 7 ’ 7 :

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Appendia B

that if, as the jury found, there was an agreement among

the defendants, its purpose was to commit an unlawful

abortion and the conspirators took substantial steps in an

endeavor to accomplish this end. That, unknown.to them,

Mrs. Swidler was not in a condition to be aborted in no

way negates their clearly manifested intent to commit a_

criminal act. Such concerted intent, coupled with an overt

act, is punishable whether or.not the contemplated crime

is consummated. United States v. Bayer,.331 U. S. 532,

542, 91 L. Ed. 1654, 1661, reh. den. 332 U. S. 785, 92 L. Ed.

368 (1947). That a factor unknown to the conspirators

makes it impossible for them to complete their intended

crime in no way lessens the degree of culpability involved

in thé criminal. combination. People vy. Nathanson, 389 Il.

311, 318, 59 N. E. 2d 677, 680, cert. denied, 325 U.S. 872, 89,

L. Ed. 1990 €1945) (holding that ini a prosecution for con-

spiracy to commit an abortion it was not necessary to

prove the woman’s pregnancy) ;* Craven v. United States,

22 F. 2d 605 (1st Cir. 1927), cert, denied, 276 U. S. 627, 72

-L. Ed. 729 (1928) (holding that the defendant-could be

convicted of conspiring with others to smuggle imported

~ liquor even though he had, been deceived by the substitu-

tion of liquor of a origin).

? The defendants argue that Nathanson is distinguishable be-

cause the Illinois abortion statute expressly makes: the woman’s

pregnancy unnecessary.’ Tl. Rei. Stat’ ch. 38 § 23-1. This

provision, however, ‘was enacted in 1961 (Crim.. Code of 1961)

as an amendment to the;statute under which Nathanson was

decided—a statute substantially similar to ours, requiring preg-

nancy for the consummated crime of..abortion. Smith-Hurd

Stat. ch. 38 § 3 (1929). See People v. Peyser, 380 IIL 404, 44

N. E. 2d 58 (1942). :

6a

“Appendia B

The case-has been argued as ‘though, | for purposes of

the defense of. impossibility, a conspiracy charge is the

same/as a charge of attempting to commit a crime. It

seems that such an equation could not be sustained, how-

ever, because, as discussed above, a conspiracy charge fo-

cuses primarily on the intent of the defendants, while in

an attempt case thesprimary inquiry centers on the defend-

ants’ conduct tending toward the commission of the sub-

stantive crime. ~The crime of conspiracy is complete once

the conspirators, having formed the intent to commit a

crime, take any step in preparation;. mere preparation,

- however, is an inadequate basis for an attempt conviction

regardless of the intent. See State v. Schwarzbach, 84

N. J. L. 268, 270 (E..& A. 1913). Thus, the impossibility

‘that the defendants’ conduct will result in the consumma-

tion of the contemplated crime is not as pertinent in a

conspiracy case as it might be in an attempt prosecution.

However, we need not pursue this point since we are sat-

isfied that even if we treat the present appeal as an at-

tempt case the defense of acormigieties does not seield the

defendants.

In our view, this case ts indlstisiguishable in principle

from cases such as State v. Meisch, 86 N. J. Super. 279

(App. Div.), cert. denied, 44 N. J. 583 (1965). In Meisch,

. defendant was convicted of: attempted larceny. It was

held that it was no defense that the drawer fito which the

defendant thrust his hfnd contained no property which

-eould pe the subject of larceny. Likewise, it should be no

defense in an attempted abortion ease that the woman,

because‘not pregnant, could not be the subject of an abor-

tion. As the Dlinois Supreme Court said: —

‘SAn attempt may be made to commit a crime

- which itis impossible for the person making the at-

7a

Appendia B

* tempt to commit because of the existence of condi-

tions of which he is ignorant. Whenever the law

makes one step toward the accomplishment of an un- .

lawful object with the intent of accomplishing that

object criminal, a person taking the step with that

intent and capable of doing every act on his part

to accomplish that object cannot protect himself

from responsibility by showing that because of some

_ fact of which he was ignorant at the time it was

_ impossible to accomplish the purpose ‘intended in

that case.’’ People v. Huff, 339 Il. 323, 331, 171

N. E, 261, 262 (1930).

In that case it was held that the defendant was guilty of

an attempted abortion although the woman was not preg-

nant and. therefore, under a statute similar to ours (see

n. 2, swpra), the substantive crime of abortion could not

be committed.

The defense of impossibility in a prosecution. for an at- .

tempted crime has resulted in a confused mass of law

throughout the country and the principles announced in .

Meisch and Huff, supra, are the subject of much dispute.

Compare, People y. Jaffe, 185 N. Y. 497, 78 N. E. 169 (1906)

with People v. Gardnér, 144 N. Y. 119, 38 N. E. 1003 (1894).

- See cases discussed in Wechsler, Jones and Korn, The

Treatment,of Inchoate Orimes in the Model Penal Code of

the A. L. I.: Attempt, Solicitation, and Conspiracy, 61

Colum. L. Rev. 571, 578-85 (1961). See also, Osborn v. |

United States; 385 U. S. 323, 333, 17 L. Ed. 2d 394, 401

_ (1966) where Justice Stewart, speaking for the Court,

questioned whether “the doctrine -of ‘impossibility’ -with

all its subtleties” should have continued validity. The de-

fense has been extensively discussed by both courts and

8a. |

| _Appendia B .

commentators. See, e.g., People v. Rojas, 55 Cal. 2d 252,

358 P. 2d 921 (1961); State v. Ellidtt, 206 Or. 82, 289 P.

2d 1075( 1955); People v. Moran, 123 N. Y. 254, 25 N. E.

412 (1890); United States v. Thomas, 13 U. S. C. M..A.

278, 32 C. M. R. 278 (1962); Ventimiglia v. United States,

242 F. 2d 620. (4th Cir. 1957); O'Malley v. United States;

227 F. 2d 332 (1st-Cir. 1955), cert. denied, 350 U. S. 966,

100 L. Ed. 838 (1956) ; Woo Wai v. United States, 223 Fed. —

412 (9th Cir. 1915) ; Booth v. State, 398 P. 2d 863 (Okl. Ct.

Crim. App.- 1965); Perkins, Criminal Law, pp. 476-500

- (1957); Arnold,. Criminal Attempts—The Rise and Fall

of An Abstraction, 40 Yale L. J. 53 (1931); Keedy, Crim-

inal Attempts at Common Law, 102 U. Pa: L. Rev. 464

(1954); Sayre, Criminal Attempts, 41 Harv. L: Rev. 821

(1928); Smith, J. C., Two Problems in Criminal Attempts,

70 Harv. L. Rev. 422 (1957); Wechsler, Jones and Korn,

‘supra (pts. 1 and 2), 61 Colum. L. Rev, 571, 957.

Our examination of these authorities convinces us that

the application of the defense of impossibility is so frought

with intricacies and artificial distinctions that the defense

has litfle value as an analytical method for reaching sub-

stantial justice. Many courts Hold that where there is a

“legal impossibility” of completing the substantive crime -

the defendant cannot be guilty of an attempt, but where

there is “factual impossibility” the accused may be con-

victed. ‘We think the effort to compartmentalize factual

patterns into these categories of factual legal impossibility _

is but an illusory test leading to contradictory, and some-

times absurd, results. E.g., cases summarized in People

v. Rollino, 233 N. Y. 8. 2d 580, 582-83 (Sup. Ct. 1962). See

. Arnold, supra, 40 Yale L. J: at 80; Wechsler, Jones and

Korn, supra, 61 Colum. L. Rev. at 578-83. In the present

case, the defendants’ intent to commit an abortion on Mrs.

-

9a

s Appendia B

Swidler.is élear; believing her to be pregnant, they did all

that was in their — -to-bring about the “ériminal result.

would have beer! Guveriet in attaining this end. by the

. unknown fact that Mrs. Swidler was not - -pregnant does —

‘ not in one whit ‘diminish the criminal quality of their

agreement. The consequence the defendants intended was

a result which, if successful, would have been a crime. We

hold that when the consequences sought by a defendant are

forbidden by the law as criminal, it is no defense that the

defendant could not succeed in reaching his zoal . because

of circumstances unknown to him. See State v. Marley, 58

N. J. L. 207, 212-(1895) where our former Supreme Court

recognized that criminal liability would attach to a per-

son “designing to perpetrate a crime, when™he cannot ef-

fect it by reason: of the ‘existence of some fact unknown

to him at the time.” Accordingly, we conclude ‘that the

defendants could be convicted of conspiracy to perform

an abortion on Mrs. Swidler notwithstanding .the absence

of pregnancy. Our conclusiox is in accord with the Model

Penal Codé §5.01 (Proposed/Official Draft, May 4, 1962):

_ *(1) Definition of Attempt. .A person is guilty of an

attempt to commit, a crime. if, acting with the kind.

of culpability otherwise required for commission of

the crime, he: .

(a) purposely engages in ocnibiist which wold

- eonstitute the crime if the attendant circumstances

were as he believes them Sae :

In the present case, the jury was justified in finding - that —

the defendants purposely and culpably engaged in conduct -

which would constitute the crime of abortion if the at-

tendant circumstances—including Mrs. Swidler’s pregnancy

—were as they believed them to be.

4

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10a

oh . Appendia By. S

in defendants fuither contend that N.J. S. 2A :87-1 is

so “vague ‘and indefinite” that, it suffers a constitutional _

’ .. infirmity. This ‘claim is based on the statutory language

. “without lawful justification” which, it is argued, is so

A indefinite a concept that no one could tell when an abor-

tion would be justified. we, |

Clearly, a construction of the statute which confined the

meaning of the phrase “lawful justification” to the preser-.

~vation.of the mother’s life would avoid any constitutional ~

attack based on vagueness. See State v. Shapiro, 89 N.. J.

L. 319 (E. & A. 1916) ; State v. Brandenburg, 137 N. J. L. ~

124 (Sup. Ct. 1948). Cf. State v. Baird, 50 N. J. 376 (1967) ;

Sanitary Vengors v. Byrne, 40 N. J. 157 (1963); State v.

Hudson County News Co., 35.N. J. 284 (1961). However,

in Gleitman v. Cosgrove, 19, N. J. 22 (1967), a tort case,

two members of this Court in a dissenting opinion indi-

__ . eated-their belief that the Court, while carrying out: the

general legislative purpose, could interpret the meaning of

lawful justification “from time to time in the light of pre-

vailing conditions.” See dissenting opinion of Justice

_ Jacobs, Id. at 53. Another member maintained that the

statutory phrase was ‘limited to situations where.the life

of the mother was in jeopardy. See concurring opinion of -

Justice, Francis, Id. at 40. Only the Chief Justice ex-

pressed doubts. as to the constitutionality of the. statute,

but his discussion related solely to the statute’s applica-

tion to eugenic abortions. . Dissenting pinion of Chief

Justice Weintraub, Jd. at 56. Three members of the Court

found. it unneeessary to deal. with the abortion statute -in ©

thie context of this tort case, but did intimate that. the

“lawful justification” might be read more broadly

than.merely to pertain to the preservation of the. mother’s

life. Id. at 31.. See Mote Penal Code. §207.11, comment

Appendia B

4, pp. 153-54-(Tentative Draft No: 9, 1959). The concern

for a re-examination: of the values represented by the law

of criminal abortion is reflected in the recent creation by

the Legislature of a commission to re-evaluate the abor-

tion statute. Assembly Concurrent. Resolution No. 24 (filed °

with Secretary of State April-29, 1968).

However, in the circumstances of the case before us, /

the ascertainment of the perimeter of lawful justification’

is not presented, and we need not concern ourselves with

the questions discijssed in the several opinions in the Gleit-

man case. The only inquiry before us is whether these

defendants had sufficient warning that their conduct was

-eriminal. A contention that a statute violates due process.

because of vagueness is based on the theory the, defend-

ant had no fair warning that his conduct was proscribed.

_ Thus, a defendant whose conduct was: such that he clearly

could tell that it was prohibited ‘will’ not be: heard to say

that the statute is overly broad and that another, in some

hypothetical case, could be misled. In United States v. |

National Dairy Products Corp., 372 U. S. 29, 9 L. Ed. 2d

561, reh. den. 372 U. S. 961, 10 L. Ed. 2d 13 (1963), the

defendants challenged as unconstitutionally vague section

3 of the Robinson-Patman Act (15 U.S.C. §13a) which |

makes it a crime to sell goods at “unreasonably low prices

for the purpose of destroying competition or eliminating

- a competitor.” Despite the indefiniteness of the phrase:

“unreasonably low prices,” the Court held that the de- . °

_fendants, who with the requisite intent. had sold below cost,

.were adequately warned of the criminality of their con- —

duct and that the statute was constitutional as applied to 7

them. The Court. said:

“Void for vagueness simply means that criminal.

responsibility should not attach where one could not

. La | 7

reasonably understand that his contemplated conduct

- is proscribed. United States v. Harriss, 347 U. VS. ,

612, 617 98 L ed 989, 996, 74 S. Ct. 808 (1954). ‘In

determining. the sufficiency, of the notice a statute

must of necessity be examined in the light of the

+s conduct with which a defendant is charged.” Id. at

+ 82-88, 9 L. Ed. 2d at 565-66 (emphasis added).

_ If, therefore, the statute gave sufficient warning to these

defendants that the abortion they.contemplated was not

lawfully justifiable and thus was criminal, the statute is

constitutional as applied to them.? See United States v.

Raines, 362 U. 8. 17, 4 L. Ed. 2d 524 (1960); Jordan v.

DeGeorge, 341 U. §. 223, 231-32, 95 L. Ed. 886, 892-93.

(1951) ; United Stdtes v. Petrillo, 332 U. S. 1, 7, 91 L. Ed.

1877, 1882-83 (1947) ; United States v. Wurzbach, 280 U. S.

3It must be noted that we are not dealing here with a statute

restricting freedom of expression. As the Court said in Umited

States v. National Dairy Products Corp., 372 U. S. 29, 36, 9.

L. Ed. ad 561, 568, reh. dén., 372 U. S. 961, 10 L. Ed. 24d B

(1963) :

*: [T]he approach to ‘ vagueness’ governing a case like this

. is different from that followed in cases arising: under

the First Amendment. There we are .concerned wé

the vagueness of the statute’ ‘on its face’ because su

vagueness may in itself deter constitutionally protected

and socially desirable conduct. See ‘Thornhill v. Alabama,

310 US 88, 98, 84 L ed 1093, 1100, 60 S Ct 736. (1940) ;

“s NAACP v. Button, 371 US 415, 9 L ed 2d 405, 83'S Ct 328.

- No such factor is present here “where the statute is ©

‘directed only at conduct designed to. destroy . competition

; _[or*to prohibit’ an abortion], activity. which is ‘neither.

_ constitutionally protected nor socially ee. ”? (Brack-

eted material ours. ) ;

13a

eee ee Exhibit B °e

_ 396, 74 L. Ed. 508 (930) ; State v. Monteleone, 36 N. J. 93,

99-100 (1961) ; State v. Suess, 236 Minn. 174, 183, 52 N. W. .

2d. 409, 415 (1952); Sedler, Standing to Assert Constitu-

tional Jus Tertii in the. Supreme.Court, 71 Yale-L. J. 599,

& Peace _° 617-20. (1962). See also, Sanitary Vendors, Ine..v. Byrne,

‘ supra, 40 N. J. at 162-63.- That in some other case where

& the facts required it, we might be called upon to determine

the specific limits of the statutory exception. for abortions

performed with lawful justification—or to deal with a con-

stitutional challenge made by a defendant claiming he was

not adequately warned of the criminality of his conduct—_

is of no aid to these defendants if their conduct*was such >

ag clearly fell within the prohibition of the statute. :

4 ~~ We conclude that the defendants here could not fail to be

oe aware that the abortion they conspired to commit—would

“| violate the statute. The Appellate’Division noted that the -

deferidants offered no argument of lawful justification be-

fore that court. 97 N. J. Super. at 422. Before us, the

defendants contend that they:believed the abortion would

be lawfully. justified _ because it was to terminate: an alleg-

edly unwanted: pregnancy. It is beyond comprehension that

the defendants could have believed that our abortion stat-

ute envisioned lawful’ justification to exist whenever a

woman warited to avoid having a child. The statutes of

3 no jurisdiction in this country permit such an excuse for |

'- an abortion.. Even under the Model Penal Code, which

substantially increases the reasons justifying an abortion, ~

such ‘‘justification” would not protect against criminal

punishment. Model Penal Code §230.3 (Proposed Official .

| Draft 1962). Moreover, if the woman’s mere ‘desire not . as

to have the child were justification for an abortion, the

statute would be rendered meaningless since any abortion |

to which the. woman consented would be deemed lawfully

justified. If there could be any doubt of the defendants’

|

Roe °

oo a

Appendia B

knowledge that their actions were unlawful it would be

dissipated by their surreptitious. conduct revealed by the ~

record—including the ‘sending of the barber-examiner Gi-

_anettino on a nocturnal visit to Mrs..Swidler’s home to

perform the operation—and the statement ascribed to Gi-

-cranettino by Mrs. Swidler that, when he telephoned to make

the appointment, he told her: ‘‘T'his is illegal, I could not

‘i se: take a check from you.’’ (Emphasis added.)

Under the circumstances of this case, the defendants are

fin no position to urge that the statute was too vague to

warn them that their contemplated conduct was proscribed.

Accordingly, we hold that the statute is constitutional as _~

applied to them. '

We have considered the additional points taised by the

‘defendant Schmidt and we -conclude that the Appellate

Division properly found thent to be without merit.

Affirmed. :

; ot C. J. (concurring)

. For the. reasons given in my separate opinions in ‘Gleit-

Be ‘man v. Cosgrave, 49 N. J. 22, 55 (1967), and State v. Baird,

50 N. J. 376, 380 (1967), I bélieve the statute is an incom- —

plete expression of legislative will, ‘that it is the legisla-

tive branch which should decide what ought to constitute

. “lawful justi cation, ’? and hence I would declare the stat-. °

‘ute inyatid. However, since the majority -in both casés ©

were. obviously of another view, I am obliged to approach

this case on the assumption that the statute is. constitution-

al and that no ‘‘lawful justification’? existed for the ©

planned abortion. On that basis I reaeh the question

whether the conspiracy was beyond the statute because the

woman the defendants Planned ‘to abort was in fact not

pregnant. As to thatgissue, I join in the opinion of Mr.

Justice Proctor. : le

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