State v. Maclean., 6.

• Decision Date: 19 May 1947
• Docket Number: No. 6.,6.
• Parties: STATE v. MacLEAN.
• Court: New Jersey Supreme Court

135 N.J.L. 491

53 A.2d 151

STATE

v.MacLEAN.

No. 6.

Supreme Court of New Jersey.

May 19, 1947.

Error to Court of Special Sessions, Passaic County.

Edward MacLean was convicted of carnal abuse committed upon his infant daughter, 7 years of age, and be brings error.

Affirmed.

January term, 1947, before CASE, C. J., and HEHER, and COLIE, JJ.

David Cohn, of Paterson, for plaintiff in error.

Manfield G. Amlicke, Pros. of the Pleas, of Passaic, and Donald G. Collester, Asst. Pros. of the Pleas, of Clifton, for defendant in error.

COLIE, Justice.

Edward MacLean was indicted for the crime of carnal abuse committed upon his infant daughter, seven years of age. Trial by jury was waived and the trial proceeded before the Honorable Joseph A. Delaney in the Court of Special Sessions. At its conclusion, the court found the plaintiff-in-error guilty and sentenced him to the State Prison for a maximum term of three years and a minimum term of two years.

The case is brought up under R.S. 2:195-14 and 2:195-16, N.J.S.A. The record is attenuated and consists of an agreed State of Case in lieu of a transcript of the actual testimony. Elizabeth MacLean, the infant, was sworn and before testifying the court examined into her qualifications as a witness. She testified that she was in the second grade in school, knew the difference between right and wrong and also knew that if she testified to untruths, she would be punished. Her further testimony was that on Saturday night, April 20, 1946, her father came home drunk, while her mother was out of the house; that he called her into the bedroom and after removing his clothing and hers ‘he pulled her onto the bed and got on top of her, she was lying on her back, and then he put his ‘thing’ between her legs against her private. She started to cry and he put his hand over her mouth to stop her. He then got up and let her go to read the funny-papers, and gave her a quarter telling her not to tell her mother what had happened. * * * She did not tell her mother about the incident until the following Thursday, five days later, because she was afraid of her father. * * * that about a year ago her father had done the same thing to her while he was drunk, and she had told her mother about it the next day.'

Ellen MacLean, the mother of the child, testified that on April 20, 1946, the plaintiff-in-error came home intoxicated. She also testified ‘that about a year before the child had told her of another attempt by the defendant to assault her in the same manner, and when she accused the defendant the following day he denied it an said that the child was imagining things.’

The plaintiff-in-error admitted that on the evening of April 20th, after drinking beer at a tavern, he came home but said that he was not intoxicated. He admitted that about a year prior to the incident for which he was indicted, his wife had told him that the daughter had accused him of an attack upon her and that he had replied that it was the child's imagination. He denied that he ever attacked the child.

Plaintiff-in-error raises and argues three points; the first being that the verdict is against the weight of the evidence. This we deem to have no merit. In order to reverse a judgment of guilt in a criminal case on the ground that the verdict is against the weight of the evidence, the fact that the verdict is against the weight of the evidence must be so clear as to give rise to the inference that it is the result of mistake, passion, prejudice or...