Lyon v. Fieldgren Realty Corp.

273 A.D. 917, 77 N.Y.S.2d 690, 1948 N.Y. App. Div. LEXIS 5271

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1948
• Status: Published

Opinion

The indictment in four counts charges the defendant (1) with the crime of manslaughter in the first degree, in that he procured the miscarriage of one Rosalind Finkelstein by the nse of medicines and drugs, resulting in her death; (2) with the crime of manslaughter in the first degree in that he procured the same miscarriage by the use of instruments, resulting in her death; (3) with the crime of abortion in that he supplied and administered drugs and medicines and used an instrument to procure the said miscarriage; and (4) with the crime of conspiracy in that he and others conspired,- combined and confederated to commit acts injurious to public health, the public morals, and for the perversion and obstruction of justice and of the due administration of the laws. At the close of the People's case the court dismissed the first count (manslaughter) and struck out that part of the third count (abortion) charging the use of medicines and drugs, thereby limiting that count to the use of an instrument. Defendant was acquitted of the charge of manslaughter (second count) and convicted of abortion (third count) and conspiracy (fourth count). Judgment of the County Court of Queens County reversed on the law and the facts, the indictment dismissed, defendant discharged and bail exonerated. Defendant’s guilt of the crimes of abortion and conspiracy was not established beyond a reasonable doubt. In addition, the conspiracy count is fatally defective in that it does not contain a statement of the act or acts constituting the crime. Nor does the evidence show that the abortion, if any, was committed in Queens County. Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.