State v. Conner

• Decision Date: 20 July 1922
• Docket Number: No. 9.,9.
• Citation: 118 A. 211
• Parties: STATE v. CONNER.
• Court: New Jersey Supreme Court

118 A. 211

STATE

v. CONNER.

No. 9.

Supreme Court of New Jersey.

July 20, 1922.

Error to Court of Quarter Sessions, Gloucester County.

Charles P. Conner was convicted of rape, and he brings error. Affirmed.

Argued November term, 1921, before GUMMERE, C. 'J., and PARKER and KALISCH, JJ.

George B. Marshall, of Woodbury, for plaintiff in error.

Oscar B. Redrow, Prosecutor of the Pleas, of Camden, for the State.

KALISCH, J. The assignments of errors, relied on and argued in the brief on behalf of the plaintiff in error, for a reversal of the judgment against him on his conviction of rape in the Gloucester county quarter sessions, will be considered in the order in which they are presented.

The first contention, based on the third assignment of error, is that the court refused to allow, on cross-examination of the prosecutrix, the inquiry as to who, if anybody, urged her to make the complaint in this cause. While it is true that in cases of rape the general practice is to permit a greater latitude in cross-examining the prosecutrix than is usually accorded in ordinary cases to a defendant, because of the nature of the accusation and the difficulty to defend against such a charge, nevertheless a failure to exercise judicial discretion cannot properly be assigned as error. Moreover, we are unable to perceive the competency of the question put to the prosecutrix, whether it was Mrs. Martin who urged her to make the complaint, in the absence of any proof tending to establish that any one urged her to that end. It is manifest that the question contained an unwarranted assumption of the fact, in that it assumed that the prosecutrix was urged by some one to make the complaint, whereas there was no testimony or circumstance which could fairly raise the inference that she was so urged.

The next assignment relied on and argued is the fifth, which challenges the legal propriety of the action of the court in allowing the state, on redirect examination of the prosecutrix, to ask when she had her menstrual period in October. In support of this assignment, it is argued that it was in no sense proper redirect examination; and, secondly, that it had no relevancy to the case. As to the first contention, it is quite clear, since it appears by the record, that counsel of the state had omitted to ask the question upon the examination in chief, and asked permission of the court to put the question, no legal rule was violated by the judge in allowing the inquiry.

The second contention is also without legal force. The inquiry apparently sought to elicit from the prosecutrix whether the sexual intercourse had been fully completed. We cannot say that the question was clearly irrelevant, since it tended to bring to the surface an amplification of the story told by the prosecutrix, and to enforce her truthfulness only to the extent, however, that she had had sexual intercourse with some male, at or about the time stated by her. It was evidential of her condition as a consequence of the alleged sexual intercourse. But, even though the question put was both irrelevant and immaterial, we are unable to perceive that its admission was harmful to the accused, since he confessed having had sexual intercourse with the prosecutrix at the time she stated that it took place, but claimed that such intercourse was with her consent.

Next, it is urged, under the sixth assignment, that the court erred in allowing the mother of the prosecutrix to testify as to what she noticed as to the condition of her daughter's sexual organs at the time the latter made complaint of the attack upon her, which was, according to the testimony, on the day following the night of the occurrence. The theory upon which counsel of plaintiff in error attempts to uphold this assignment is that the mother was not an expert. But this objection is clearly frivolous. The appearance of the girl's parts was not a subject which required expert testimony. Anybody who noticed the condition of the parts was competent to testify to it.

The seventh assignment of error, which is next argued in the brief, presents the question whether the trial judge properly excluded testimony offered on behalf of the accused. The mother of the prosecutrix was asked on her direct examination whether, when a Mrs. Conner, mother of the accused, came to see the witness on Monday night, she did not ask Mrs. Conner if she was the lady who owned the dance pavilion. That this was not cross-examination, and was an Inquiry relating to a collateral matter, was practically conceded in the reply of counsel of the accused to the question asked him by the court as to how the inquiry was material, when he said that his object in putting the question was to lay a foundation for contradicting the witness, if her answer was in the negative. Of course, this he could not properly be permitted to do. See State v. Mor, 85 N. J. Law, 558, 89 Atl. 755.

Next, it is argued, under the eighth assignment, that it was harmful error to admit the testimony of the brother of the prosecutrix as to whether or not, on the Sunday following the alleged assault upon her, he noticed whether she ate anything at mealtime. The question, obviously, called for an answer, "yes" or "no." The witness, however, answered: "She ate a little; she didn't eat very much; she didn't seem to have any appetite." The answer was not objected to, nor was any motion made to strike it out; but, assuming that the objection to the question is broad enough to include within its scope objection to the answer, we think the inquiry was competent and relevant. The testimony of the prosecutrix was to the effect that she had been violently assaulted and ravished. It is therefor apparent that her physical and mental condition, following the assault, as observed by the witness within a short period of time after its occurrence, was relevant, as tending to enforce...