94 A. 598 (N.J.L. 1915), 48, State v. Schaeffer

Docket Nº:48
Citation:94 A. 598, 87 N.J.L. 663
Opinion Judge:KALISCH, J.
Party Name:THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH SCHAEFFER, PLAINTIFF IN ERROR
Attorney:For the plaintiff in error, William Greenfield and Frank E. Bradner. For the state, Andrew Van Blarcom.
Judge Panel:For affirmance -- THE CHANCELLOR, SWAYZE, TRENCHARD, PARKER, BERGEN, KALISCH, BLACK, VREDENBURGH, WHITE, TERHUNE, WILLIAMS, JJ. 11. For reversal -- None.
Case Date:June 14, 1915
Court:Supreme Court of New Jersey
 
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Page 598

94 A. 598 (N.J.L. 1915)

87 N.J.L. 663

THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,

v.

JOSEPH SCHAEFFER, PLAINTIFF IN ERROR

No. 48

Court of Errors and Appeals of New Jersey

June 14, 1915

Submitted March 22, 1915.

On error to the Supreme Court.

For the plaintiff in error, William Greenfield and Frank E. Bradner.

For the state, Andrew Van Blarcom.

OPINION

KALISCH, J.

The Supreme Court affirmed a judgment on a conviction of the plaintiff in error of assault and battery and rape, had in the Essex County Quarter Sessions.

We agree with the result reached by that tribunal for the reasons hereinafter stated.

For the plaintiff in error it is argued that the judgment of the Supreme Court ought to be reversed because it appeared by the record on review before that court, that the trial judge permitted a sister of the prosecutrix to testify against the objection of the plaintiff in error, that the prosecutrix [87 N.J.L. 664] made complaint to her of the alleged assault eight or ten hours after it had occurred. This, it is contended, was so remote in point of time as to make the testimony inadmissible.

The alleged assault on the prosecutrix took place in the afternoon, and it was in the evening when her sister called that she complained to her of the assault.

Counsel of plaintiff in

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error moved to strike out the testimony, and in denying the motion the trial judge said: "It took place in the afternoon. I do not think it is too remote, because the complaint is one of the well-recognized indications of the truth or falsity of such a charge."

We think the testimony was properly admitted, and the trial judge properly refused to strike it out, but the reason that he gave for his action is not in accord with the judicial declaration of this court.

Mr. Justice Garrison, in State v. Rodesky, 86 N.J.L. 220, speaking for this court (on p. 221), says: "Even in trials for rape the fact that a complaint was made by the woman is admitted not as corroborative of the facts to which she has testified on the trial, but for the purpose of meeting in advance a self-contradiction in her conduct which if unexplained would discredit her as a witness."

In People v. McGee, 1 Den. 19, Judge Jewett (on p. 22), in discussing the legal rule, says: "It is not denied but that, if the female had been a...

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