State v. Calabrese

• Decision Date: 24 March 1924
• Parties: STATE v. CALABRESE.
• Court: New Jersey Supreme Court

124 A. 54

STATE

v. CALABRESE.

Supreme Court of New Jersey.

March 24, 1924.

Error to Court of Quarter Sessions, Essex County.

Andrew Calabrese was convicted of assault and carnal abuse of a girl over the age of 12 and under the age of 16 years, and he brings error. Affirmed.

Argued November term, 1923, before GUMMERE, C. J., and MINTURN and BLACK, JJ.

James Mango, of Newark, for plaintiff in error.

John O. Bigelow, Prosecutor of the Pleas, of Newark, for the State.

GUMMERE, C. J. The plaintiff in error, Calabrese, was convicted in the Essex quarter sessions upon an indictment charging him with the crime of assault and carnal abuse committed upon one Mary Nixon, a girl over the age of 12 and under the age of 16 years, on the 1st day of October, 1922. The present writ of error is sued out to test the validity of the conviction.

The first ground upon which it is contended the conviction before us should be reversed is directed at the admission of testimony given by the complaining witness showing that the plaintiff in error had had sexual intercourse with her on several occasions prior to the assault alleged in the indictment to have been committed by him upon her. The contention is that evidence of the commission of earlier criminal acts, like those laid in the indictment, between the same parties is inadmissible, and the decision of this court in the case of State v. Lanto, 121 Atl. 139, is cited as authority for this proposition. But this doctrine was repudiated by the Court of Errors and Appeals, 122 Atl. 738, at the June term, 1923, on a review of that decision, that court holding that on a prosecution for an offense involving a sexual crime evidence of prior offenses of like character between the same parties is admissible, notwithstanding that the prior offenses are extraneous.

The next ground of reversal is directed at the admission of testimony showing the payment by the plaintiff in error to this girl of a sum of money some three months after the commission of the offense charged against him in the indictment. The argument, as we understand it, is that this payment of money constituted no part of the criminal transaction; that therefore it was incompetent; and that its admission tended to create prejudice in the minds of the jurors. We would agree that proof of the payment of money so long after the commission of the offense charged in the indictment, without more, would probably have been incompetent, as the plaintiff in error contends; but in the present case the proofs showed that at the time of the payment of this money the girl was pregnant as the result of her intercourse with him, and that, in this situation, she had called upon him to acquaint him with her condition and to inform him that he would have to take care of her; and that, in response to this statement, he had made the contribution of $5, saying at the same time that, if she (the girl) would not tell anybody, he would take care of her and pay all her expenses. It is hardly necessary to point out that these facts, taken together, if true, constituted material and cogent evidence of the truth of the charge laid against him in the indictment.

The next ground of reversal is that the court erroneously refused a motion to direct a verdict in favor of the plaintiff in error based upon the alleged failure of the state to prove that at the time of the commission of the offense charged against him the girl was under the age of 16 years. The girl herself had testified that she was not quite...