Faas, Application of, A--519

• Decision Date: 09 October 1956
• Docket Number: No. A--519,A--519
• Citation: 125 A.2d 724,42 N.J.Super. 31
• Parties: Application for the Writ of Habeas Corpus of Frederick A. FAAS, Petitioner-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 31

42 N.J.Super. 31

125 A.2d 724

Application for the Writ of Habeas Corpus of Frederick A FAAS, Petitioner-Appellant.

No. A--519.

Superior Court of New Jersey.

Appellate Division.

Argued Aug. 27, 1956.

Decided Oct. 9, 1956.

David F. Brandley (assigned counsel), Caldwell, argued the cause for petitioner-appellant (Brandley & Brandley, Caldwell, attorneys).

Myron W. Kronisch, Newark, argued the cause for plaintiff-respondent (Charles V. Webb, Jr., County Prosecutor of Essex County, Newark, attorney).

Before Judges CONFORD, DAVIDSON and TOMASULO.

The opinion of the court was delivered by

CONFORD, S.J.A.D. (temporarily assigned).

This is an appeal from a dismissal by the Essex County Court of a writ of Habeas corpus. In November 1948 the defendant filed pleas of Non vult to two indictments charging him, respectively, with rape and assault with intent to rape. The sentences imposed were from 10 to 12 years on each indictment, to run consecutively. The intent indictment referred to prosecutrix, D.S., and the rape indictment referred to prosecutrix, H.G. Each indictment included a second count charging assault and battery on the same individual. The defendant had also been indicted at the same time for atrocious assault and battery, and for robbery, in two separate indictments. These were Nolle prossed after pleas of Non vult were entered on the indictments Sub judice.

An opinion was filed by Judge Foley in support of his order dismissing the writ after hearing. The appellant raises two grounds of appeal: (1) the indictment and its underlying statute are invalid in that the defendant was not adequately informed of the 'nature and cause of the offense charged,' and (2) the manner in which his pleas of Non vult were accepted violated his right to due process. We consider the contentions in that order.

I.

The first argument is in two phases. The first is that the rape indictment made no reference to the age of the prosecutrix and that defendant was therefore unable to tell which of the three types of offense penalized by the then effective statute, R.S. 2:163--1 (now N.J.S. 2A:138--1, N.J.S.A.), he was charged with. The statute read as follows:

'Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person to commit such offense, or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor * * *; or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child over the age of twelve years and under the age of sixteen years, with or without her consent, shall be guilty of a high misdemeanor * * *.'

The indictment in question reads, so far as material, as follows:

'The Grand Jurors of the State of New Jersey, for the County of Essex, upon their oath present that Frederick A. Faas, on the 15th day of June, 1948, at the Township of Caldwell, in the County of Essex aforesaid and within the jurisdiction of this Court, did have carnal knowledge of (H.G.) forcibly against her will, contrary to the provisions of R.S. 2:163--1, against the peace of this State, the government and dignity of the same.'

The three offenses encompassed by the statute have been succinctly summarized as follows: '(1) rape, (2) carnal abuse of a woman-child under the age of 12 years, and (3) carnal abuse of a woman-child over the age of 12 years and under the age of 16.' State v. Lefante, 12 N.J. 505, 513, 97 A.2d 472, 477 (1953). The penalty for (2) is greater than for (3). It will be perceived that the indictment uses, Verbatim, the language of that portion of the statute dealing with 'rape' and it would seem from that fact and from the absence of any reference to the age of the female that defendant is unmistakably apprised that he is charged with rape and not with carnal abuse of either category specified in the statute.

In normal usage rape, or forcible carnal knowledge, is entirely distinct from carnal abuse, the first involving actual sexual penetration, and the second being, as stated in State v. Huggins, 84 N.J.L. 254, 259, 87 A. 630, 632 (E. & A.1913), 'an act of debauchery of the female sexual organs by those of the male which does not amount to penetration.'

In State v. Tilton, 104 N.J.L. 268, 271, 140 A. 21, 22 (Sup.Ct.1928), the court said that 'where the indictment charges a statutory crime, the general rule is that the offense may be charged either in the words of the statute or there may be such a particular statement of facts as will bring the accused within its operation.' Defendant makes the point that it was stated in the Tilton case, supra, that the words, 'carnal knowledge,' include within their meaning, 'carnally abuse,' as applied to a womanchild over the age of 12 years and under the age of 16, and that, therefore, the use of the language, 'carnal knowledge,' in the subject indictment, of itself does not inform defendant whether it is carnal knowledge or carnal abuse that he is accused of. All that the Tilton case held was that where the defendant was charged with having had carnal knowledge of a prosecutrix described in the indictment as being a woman-child over the age of 12 years and under the age of 16 years, the defendant being described as over the age of 16, the words 'carnal knowledge' in the indictment were sufficiently comprehensive of the act which is connoted by the term 'carnal abuse' so as adequately to sustain a conviction of the latter offense. The case is clearly not applicable in the present connection. Indeed it helps the State, since the present indictment was framed in the language of the statute, as the court there indicated was appropriate.

The defendant also cites State v. Lefante, supra. In that case the court sustained an indictment for carnal abuse notwithstanding that it did not recite the age of the defendant, whereas the statute requires that the defendant shall be over the age of 16. The court rejected the objection, holding that this was a matter of defense. The opinion went on by way of Dictum to state that it was the duty of the State to allege the age of the girl 'so that the defendant will know what crime he is charged with,' but it is obvious that the court was speaking in terms of a situation where carnal abuse, not rape, was being charged in the indictment. The excerpt from the opinion which defendant relies upon expressly states, as noted above, that there are three separate crimes specified in the statute, the first of which is rape. Where that is the charge, as here, the age of the female is, of course, entirely immaterial.

The second aspect of defendant's first contention is that since the statute does not use the words, 'unlawfully' or 'feloniously,' and since a husband presumably may have carnal knowledge of a woman (his wife) forcibly and against her will, a situation which defendant says the Legislature 'did not intend to proscribe,' the statute and the indictment leave a defendant open to prosecuti...