State v. Gambutti, No. A--291

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtFRANCIS
Citation36 N.J.Super. 219,115 A.2d 136
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Phillip GAMBUTTI, Defendant-Appellant. . Appellate Division
Decision Date14 June 1955
Docket NumberNo. A--291

Page 219

36 N.J.Super. 219
115 A.2d 136
STATE of New Jersey, Plaintiff-Respondent,
Phillip GAMBUTTI, Defendant-Appellant.
No. A--291.
Superior Court of New Jersey.
Appellate Division.
Argued May 23, 1955.
Decided June 14, 1955.

Page 222

[115 A.2d 137] Michael A. Dwyer, Ridgewood, argued the cause for appellant (Doughty & Dwyer, Ridgewood, attorneys).

William C. Brudnick, Sp. Asst. Prosecutor, Jersey City, argued the cause for respondent (Guy W. Calissi, Hergen County Prosecutor, Hackensack, attorney; William J. Arnold, Hackensack, of counsel).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by


Defendant was convicted after jury trial on an indictment charging that he 'unlawfully did force and induce (name), a child under the age of 16 years, to wit, of the age of seven years, to do and submit to an act tending to debauch said child and impair the morals of the said child, to wit, by then and there forcibly compelling the said (name) to submit to the fondling of her private parts,' contrary to N.J.S. 2A:96--3, N.J.S.A. His appeal is based upon certain alleged trial errors and the contention that the verdict was contrary to the weight of the evidence.

Before considering the grounds urged for reversal, it appears necessary to discuss a matter disclosed by the record which was not presented by the parties. The only witness offered by the State as to the actual commission of the offense, the victim of the alleged indecent act, was eight years of age at the time of the trial. Defendant's daughter, age nine years, also testified. Neither was sworn before doing so.

Page 223

No objection was registered by the defendant to the failure of the court to administer the oath to these children. And the propriety of the course taken is not made a ground of appeal. But we were advised, in answer to questions during oral argument, that some of the trial courts follow[115 A.2d 138] the practice employed in this instance. For this reason, and because a new trial is to be ordered on grounds to be set forth, it is deemed expedient to restate the controlling principles here.

It has been settled for a long time that the competency of a child to be a witness is a matter for inquiry by the trial judge and rests largely in his discretion. His conclusion will not be disturbed unless it plainly appears to be unsupported by the evidence. State v. Labriola, 75 N.J.L. 483, 67 A. 386 (E. & A.1907); State v. Tolla, 72 N.J.L. 515, 522, 62 A. 675, 3 L.R.A., N.S., 523 (E. & A.1905); State v. Cracker, 65 N.J.L. 410, 47 A. 643 (Sup.Ct.1900).

Here, when the infant complainant was called to the stand the usual inquiry was pursued by the trial judge to determine her competency to testify and to be sworn as a witness. After satisfying himself that she was competent to do so, he obtained an agreement from her to tell the truth and said:

'All right. I will let her testify on that affirmation.'

Then without being sworn she was permitted to give her account of the defendant's conduct with her.

Substantially the same procedure was followed when defendant's daughter was called in his defense. She was questioned about her belief in God, her knowledge of the difference between right and wrong, her duty to tell the truth, and the divine retribution which would come upon her if she failed in that duty. The court then said:

'All right, Sandra is qualified.'

She was not sworn.

Failure to administer the oath to these witnesses, children though they be, was error. The very purpose of the interrogation is to ascertain if such immature persons understand

Page 224

the nature, quality and burdens of the oath. If so, they qualify as witnesses and must be sworn or affirmed (if the circumstances require that ritual). The fact of childhood does not alter that requirement. State v. Levine, 109 N.J.L. 503, 511, 162 A. 909 (Sup.Ct.1932); Williamson v. Carroll, 16 N.J.L. 217 (Sup.Ct.1837); Anderson v. Barnes, 1 N.J.L. 203 (Reprint 235) (Sup.Ct.1793); State v. Brewer, 1 W. W. Harr. 363, 114 A. 604 (Del.Ct.Gen.Sess.1921); Wigmore on Evidence (3d ed.), § 1824(2), p. 308.

This rule was announced as far back as 1779 in King v. Brasier, 1 Leach 199, 1 East, Pleas of the Crown 443, 168 Eng.Rep. 202. There the defendant was indicted for assault with intent to rape an infant under seven years of age. The report of the case says:

'The Judges assembled at Sergeants' Inn Hall, 29 April 1779, were unanimously of opinion that no testimony whatever can be legally received except upon oath; and that an infant, although under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath * * * for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath, their testimony cannot be received.'

Cf. Rex v. Antrobus, 2 D.L.R. 55 (B.C.Ct.App.1947); Rex v. Court, 3 D.L.R. 223 (P.W.I.Sup.Ct.1947).

Commenting on this opinion, Wigmore wrote:

'There was a time when it was doubted whether an infant was in all cases to be rejected when incapable of understanding the oath. But in R. v. Brasier it was settled that there should be no exception.' § 1825.

[115 A.2d 139] We turn now to a consideration of the assignments of error. The infant complainant asserted that she came to the defendant's home seeking his daughter, they being playmates. Only the defendant was present at the time. He invited her

Page 225

to sit on his lap and when she did so he put his hand inside her clothes and fondled her private parts. Immediately thereafter she went home and told her mother what had happened. On cross-examination defendant elicited the details of the offense as described in this conversation.

When the mother took the stand it appeared that she knew her daughter had gone to defendant's home. The child returned crying and the following conversation ensued:

'She said, 'Mother, what did he do that for?'

'And I said, 'What did who do?'

'And I didn't know what she meant, and so she came across to me and said that Mr. Gambutti had put his hand on her 'Tally Wacker'.

'Q. Do you know what she means when she refers to her 'Tally Wacker'? A. That is her privates.'

Part way through the testimony of the mother, an objection was interposed on the ground of hearsay. Although from a technical standpoint it could have been more timely, since it was dealt with on the merits at the trial level, we shall do likewise.

The objection was overruled. The trial court took the view that the 'rape case rule' should be applied. This doctrine permits proof by the prosecution that the violated woman complained of the incident, within a reasonable time after it occurred, to the authorities or to persons to whom she might be expected to turn for sympathy, protection or advice. State v. Saccone, 7 N.J.Super. 263, 72 A.2d 923 (App.Div.1950); State v. Orlando, 119 N.J.L. 175, 194 A. 879 (Sup.Ct.1937); State v. Langley, 143 A. 217, 6 N.J.Misc. 965 (Sup.Ct.1928); State v. Spallone, 97 N.J.L. 221, 117 A. 151 (E. & A.1922); State v. Schaeffer, 87 N.J.L. 663, 94 A. 598 (E. & A.1915); State v. Rodesky, 86 N.J.L. 220, 90 A. 1099 (E. & A.1914); State v. Shupe, 86 N.J.L. 410, 92 A. 53 (Sup.Ct.1914); affirmed 88 N.J.L. 610, 97 A. 271 (E. & A.1916); State v. Ivins, 36 N.J.L. 233 (Sup.Ct.1873); 4 Wigmore on Evidence (3d ed.), § 1135. Admissibility of the hearsay is justified on the theory that upon the happening

Page 226

of such an outrage, the pattern of normal human behavior would be to complain of it to persons in the designated category. So the fact of complaint is provable in recognition of the adverse inference which might be expected to flow from silence and for the purpose of negativing or rebutting in advance a self-contradiction which, if not explained, would tend to discredit her as a witness.

In allowing the testimony the trial judge said among other things that '* * * it is such a charge that ordinarily a person would not report * * * unless it was true' and 'ordinarily such a statement would not be made unless it were true * * *'; 'the test of veracity is the fact that it is too embarrassing a thing to say about yourself unless it is true.' The advisability of such statements in the presence of the jury is questionable. In a similar situation in State v. Schaeffer, supra, a milder statement was criticized. There the trial court overruled an objection to evidence of a complaint of this type 'because the complaint is one of the well recognized indications of the truth or falsity of such a charge.' The Court of Errors and Appeals commented that the reason given for such action 'is not in accord with the judicial declaration of this court.' (87 N.J.L. at page 664, 94 A. at page 599.)...

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