State v. Arbus, A--488
| Decision Date | 02 February 1959 |
| Docket Number | No. A--488,A--488 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Stanley ARBUS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Ervan F. Kushner, Paterson argued the cause for defendant-appellant (Kushner & Kleiner, Paterson, attorneys, Edwin J. Nyklewicz, Paterson, on the brief).
Adolph A. Romei, Paterson, argued the cause for plaintiff-repondent (Preziosi & Romei, Paterson, attorneys).
Before Judges SCHETTINO, HALL and GAULKIN.
The opinion of the court was delivered by
GAULKIN, J.A.D.
Dawn Honeychurch made a complaint in the Municipal Court of Paterson, under N.J.S.A. 9:16--3, that defendant was the father of her child, born November 19, 1957. Defendant was tried by the magistrate without a jury, and acquitted. Miss Honeychurch then appealed to the Passaic County Court, where the case was tried De novo with a jury under the authority of Leonard v. Werger, 21 N.J. 539, 122 A.2d 777 (1956). The jury returned a verdict that defendant was the father. From the resulting judgment of filiation, defendant appeals. He alleges numerous errors but, since the judgment must be reversed and a new trial ordered because of prejudicially improper cross-examination, only those grounds of appeal will be discussed which present problems which may reappear in the new trial.
Appellant argues, on the authority of Tuohy v. Boynton, 5 N.J.Super. 265, 68 A.2d 851 (App.Div.1949), that the proceedings in the County Court were void because the notice of appeal from the municipal court to the Passaic County Court was not signed by Miss Honeychurch or her personal counsel, but by the Paterson City Prosecutor. In the County Court Miss Honeychurch was represented by her personal counsel and by the Paterson City Prosecutor. The record does not show whether she was represented by both before the magistrate. It does seem to us that the notice of appeal should have been signed by Miss Honeychurch, or by her counsel if she had one then, and not by the city prosecutor who, presumably represented the City of Paterson. But that is a mere irregularity. The appeal was taken for Miss Honeychurch, the real party in interest. Cf. Tuohy v. Boynton, supra.
Appellant correctly points out that the State of New Jersey has, improperly, been named as the plaintiff. The State is not a party to these proceedings. Kopak v. Polzer, 4 N.J. 327, 72 A.2d 869 (1950); Tuohy v. Boynton, supra. This happened because, to frame the complaint, it was attempted to alter a form which had been printed for use in bastardy proceedings initiated by the State Board of Child Welfare or the municipal director of welfare under N.J.S.A. 9:17--2. Miss Honeychurch must be substituted as party plaintiff.
Not only did the complaint retain the printed 'State of New Jersey' as plaintiff, but that minor mistake led to others much more serious. For example, the County Court judge charged the jury that . This misapprehension of who was plaintiff naturally led to the entry of a judgment of filiation in the form used when the proceedings are instituted by the State Board of Child Welfare or a municipal director of welfare under N.J.S.A. 9:17--2.
The judgment of filiation provided (emphasis ours):
'It is Ordered and Adjudged on this 16th day of April, 1958, that Dawn Honeychurch, a single woman, of the City of Paterson, County of Passaic and State of New Jersey, has been delivered of a child born out of wedlock Which is likely to become chargeable to the City of Paterson and that Stanley Arbus is the father of said child.
'It is further Ordered that the said Stanley Arbus pay, or cause to be paid, to James V. Alois, Director of Welfare of the City of Paterson, County of Passaic and State of New Jersey, And his successors in office, the sum of $7.50 weekly for and towards the maintenance of said illegitimate child until the further order of this Court.
'It appearing that said mother is in indigent circumstances, it is further Ordered that the said Stanley Arbus pay or cause to be paid To the Department of Welfare of the City of Paterson the sum of $75.00 for the Paterson General Hospital of Paterson, New Jersey, and $40.00 for Dr. Ciro S. Tarta for the expenses incurred by the said mother during her confinement.
'It is further Ordered that Stanley Arbus, the father of the said child, shall forthwith enter into A bond in the sum of $1,000.00 to the Director of Welfare of the City of Paterson, County of Passaic and State of New Jersey, or his successors in office, that he will obey the Order of Filiation according to the Statute in such cases provided for.'
The finding that the child 'is or is likely to become a public charge' is required by N.J.S.A. 9:17--2, but has no place in a judgment under N.J.S.A. 9:16--3 when the mother is the plaintiff. In addition there is nothing in the record before us to support such a finding. In fact the printed allegation in the complaint that the child 'is, or is likely to become a public charge' was stricken out before it was signed by Miss Honeychurch.
The record does not show upon what basis the County Court decided appellant should pay $7.50 per week for the support of the child, nor does it show that there was presented to the court (after the verdict of the jury) any evidence concerning 'the ability and financial condition of the parent' which the court is required by N.J.S.A. 9:16--3 to consider. Nor is there any testimony about the hospital and doctor bills. For example, we do not know whether they were still owing or had been paid; and if paid, when and by whom. Under N.J.S.A. 9:16--3 the court has no authority to order the father to reimburse the department of welfare, or the mother, for hospital and doctor bills paid before the filing of the complaint. By N.J.S.A. 9:16--1 to 3 the County Court is empowered to order payments only for the 'support and education' of the child. We do not pass upon whether, prior to the child's birth, the court may order the payment of the doctor and hospital bills for the confinement, as 'support' of the child under the statute. That is not before us because here the complaint was filed when the child was more than a month old.
Furthermore, the payments which the court is empowered to order for the benefit of the child must be made to the mother, or to the person having custody of the child. Perhaps they may be made through the probation office, but we know of no authority to order them paid to the director of welfare.
The County Court has no authority, in a proceeding under N.J.S.A. 9:16--3, to exact a bond. A bond is provided for in proceedings under N.J.S.A. 9:17--2, but there are no provisions for one in N.J.S.A. 9:16--1 et seq. It is true that the Supreme Court said in Leonard v. Werger, supra, 21 N.J. at page 543, 122 A.2d at page 779, that 'in legislative contemplation chapters 16 and 17 are to be considered as intertwined enactments, particularly as respects the processing of an action under chapter 16 to accomplish its objectives.' However, the court there was dealing not with the posting of a bond but with the right to appeal. Our study of those sections of chapter 17 relating to bonds brings us to the conclusion that (even under the broad approach of the Leonard case) it is impossible to extend those sections to compel a bond in a mother's proceeding under chapter 16. See N.J.S.A. 9:17--13 to 16; N.J.S.A. 9:17--30 to 32, 33.
Turning to the question of the improper cross-examination, we find that the defendant had testified on direct examination that he had not been out with Miss Honeychurch after December 1956, when he became engaged to another woman whom he married in 1957; that he had never had sexual relations with Miss Honeychurch at any time; and that he was not the father of her child. There was nothing in his direct testimony (or in the testimony of any other witness called by either side) that was connected with, or a basis for, what was asked in the cross-examination discussed below.
The improper cross-examination was, in part, as follows:
'Did you say in the Municipal Court that you had been having sexual intercourse with girls since you were twelve years old?
'Mr. Cohn: I object, if your Honor please, and ask for a mistrial on the ground it is prejudicial and highly immaterial.
'Mr. Cohn: May I explain this, your Honor please?
'The Court: He may answer the question.
'By the Court:
'By Mr....
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