Berger

Defendant was convicted on two counts of performing abortions. He appeals from the ensuing judgment and order denying his motion for a new trial.

Count one grew out of his operation on Mrs. Y. She had a telephone conversation with defendant in which he asked her when she had last menstruated and told her that he could “take care of the situation” and that his fee would be $300. Later, she went to defendant’s apartment, and gave him $300. She was asked by defendant how she knew she was pregnant. She replied she had been so advised by her doctor and also recognized certain physical symptoms. There was further discussion as to when she had last menstruated. She was given a sedative and told to undress in an adjoining room. After doing so, she lay on an operating table with her feet in stirrups, and was given a hypodermic injection in the arm to determine whether she was allergic to penicillin. After some further preparation she received an injection in her vagina. A speculum was then inserted. She was given an anesthetic by means of a rubber mask. She felt excruciating pain and was told she was being dilated. At approximately the time the operation was in process of being completed…