People v. Hyman , 131 N.Y.S.2d 691 ( 1954 )

Dore, J.

(dissenting). Realizing that the salient facts established in the People’s case could not successfully be merely denied, defendants attempted to weave the incontrovertible facts into an explanation that would avoid the inference of a criminal abortion. The jury found defendants’ explanation of the facts false and that beyond any reasonable doubt both defendants were guilty of a criminal unnatural abortion.

At trial through the testimony of Dr. Hyman and the claimed opening of defendants’ counsel defendants contended that up to trial they never had an opportunity to give the explanation they attempted to give at the trial. In that state of facts, the prosecution could justifiably assail the claim as false by showing that during the investigation of the crime, defendants, when asked, did not give that explanation though they had ample opportunity to do so. The questions now found to be seriously prejudicial wore in the state of facts disclosed competent to impeach defendants ’ sole defense in their testimony in chief.

The sole question asked by the jury during their deliberations, and answered by the reading of Dr. Hyman’s testimony regarding the so-called ‘ ‘ therapeutic curettage ’ ’ indicated clearly that the jury had their minds on the basic facts in the evidence. Their verdict, returned about an hour after the reading of that part of Dr. Hyman’s testimony shows that they found the “ explanation ’ ’ factually false.

These defendants were trained and licensed to practice an art whose sole aim is to heal and to save human life. The jury has found them guilty of using their skills, not to heal or preserve but to destroy human life in its most defenseless form: — and they so acted for money, the exorbitant fee of $500 in cash paid by the woman and divided between defendants.

I dissent and vote to affirm.

Peck, P. J., Botéis and Bebgas, JJ., concur with Cons, J. •, Dobe, J., dissents and votes to affirm, in opinion.

Judgments reversed and a new trial ordered.