State v. Masnik

• Decision Date: 20 October 1939
• Docket Number: No. 1.,1.
• Citation: 8 A.2d 701,123 N.J.L. 335
• Parties: STATE v. MASNIK.
• Court: New Jersey Supreme Court

8 A.2d 701

123 N.J.L. 335

STATE

v. MASNIK.

No. 1.

Supreme Court of New Jersey.

Oct. 20, 1939.

Error to Court of Quarter Sessions, Middlesex County.

James Masnik was convicted of incestuously having carnal knowledge of the body of his daughter, and he brings error.

Affirmed.

Argued October term, 1939, before RROGAN, C. J., and DONGES and PORTER, JJ.

David I. Stepacoff, of Perth Amboy, for plaintiff in error.

Charles M. Morris, Pros. of the Pleas, of New Brunswick, and George S. Applegate, Jr., Asst. Pros. of the Pleas, of South River, for the State.

PORTER, Justice.

The plaintiff in error was indicted and convicted of incestuously having carnal knowledge of the body of his daughter, Mary Masnik, on February 8, 1939, and at other times. Mary Masnik testified that this offence occurred on October 23, 1938, and again on February 8, 1939, at the home of her parents where she resided with them and a brother.

It was also testified on behalf of the State that Mary Masnik was pregnant with child as a result of the conduct of her father on the first occasion; that he made a confession to the police of both offences which was reduced to writing and signed and sworn to by him; and further, that shortly before the trial of the indictment he had gone to the place of employment of his son Paul and had asked him to help him "kill the case" by asking Paul to take the blame for Mary's condition and also said that he would pay $4,000, or $5,000, to "kill the case" and asked Paul to see his sister and mother on his behalf.

The plaintiff in error denied the charge and denied that he made the said alleged propositions to Paul. He further said, in effect, that he had been induced by the police to make a false confession by deceit in that he was told that it would be to his interest to do so.

The plaintiff in error argues three points on assignment of error and specifications of causes for reversal based upon the entire record.

It is first contended that the trial court was in error in permitting Anna Masnik, wife of plaintiff in error, to testify to matters other than to prove the fact of marriage. She was asked, and answered without objection, questions as to the number of children born of the marriage, the age of her daughter, Mary, of whom the household consisted, and whether Mary was a child of the marriage.

A wife or husband is precluded from testifying against each other in a criminal action except to prove the fact of marriage. R.S. 2:97-4, N.J.S.A. 2:97-4. The testimony of the wife was erroneously admitted and should have been struck even though the objection was untimely. None the less we deem it harmless error for the reason that the same testimony was later on properly adduced by other witnesses including the plaintiff in error. There was therefore no prejudice to the plaintiff in error by the admission of the testimony of the wife. Cf. State v. Littman, 86 N.J.L. 453, 92 A. 580, affirmed 88 N.J.L. 392, 96 A. 66; State v. Matarazza, 93 N.J.L. 47, 107 A. 266, affirmed 94 N.J.L. 263, 109 A. 304; State v. Sandore, 124 A. 528, 1 N.J.Misc. 537; affirmed 100 N.J.L. 187, 124 A. 528.

Secondly it is the contention that the trial court committed error in charging to the jury as a fact what was not a proven fact as to the guilt of the plaintiff in error. The objection is to the part of the charge wherein the Court stated: "Now there is another item in the case which we cannot overlook, and that is that the girl is pregnant. This is admitted on all sides. The doctors testified that she was, and she has that appearance. She is pregnant by someone, and there is no testimony, not a shadow of testimony in the case, that she had anything to do with any other man at any time during the period in which conception took place so that she would be in the stage of pregnancy which she now is. There was an intimation by Mrs. Hulak that the girl had admitted that years ago she had something to do with some boy." * * * "Often times in cases of this sort, sex cases, there is an attempt to prove that someone one else is the father of a child by testimony more or less directed that she had intercourse with somebody else during the period, but there is no such testimony whatever in this case."

It appears from Mrs. Hulak's testimony that Mary called upon her in February 1939, and told her that she had not had "her monthly period for six months". Then follow these questions and answers:

"Q. This was in February? A. Yes, and I asked her if she was fooling around with any boys and she said no. She asked me if I had any quinine pills to give her and I said no, I didn't.

"Q. Mary stated on direct examination that she had no boy friends. Did she ever say anything to you that does not agree with that statement? A. Yes. She told me in February that Joe Hordash had intercourse to do with her twice.

"Q. Did she say when that took place? A. No."

It is argued on behalf of the plaintiff in error that the testimony may indicate that someone other than the plaintiff in error was responsible for Mary's pregnancy. Therefore, the Court had charged as a fact a material matter of which the fact was disputed. It may be that the conclusion arrived at by Mrs. Hulak was that Mary's pregnancy was caused by some one other than by the plaintiff in error. If so the only basis for that conclusion was Mary's statement to her that she had had sexual intercourse with Hordash. Such a conclusion cannot be sustained by the evidence in face of the fact that Mary did not say when the intercourse with Hordash had occurred nor with the statement that she had not menstruated for six months, especially in view of the fact that at the time of the trial, May 8, 1939, the baby had not yet been born and also when the fact is kept in mind that Mary told her on more than one occasion that her father had caused her pregnancy. It seems to us that this testimony does not permit any inference to be drawn that any one other than plaintiff in error had caused the pregnancy. So we conclude that the Court did not charge as a fact what was in dispute. On the contrary, we think that what was said on this point was entirely accurate and in accord with the testimony. The case is barren of any proof that any one other than plaintiff in error had had intercourse with Mary within the period which would give rise to an inference that some one other than he has caused her pregnancy and so raise doubt as to his guilt under the indictment. Considering the charge as a whole we find that the Court in reviewing the testimony clearly admonished the jury to disregard any misstatement of it he may have given but rather to base its verdict on its own recollection of the testimony.

Lastly it is urged that the...