State v. Orlando

• Decision Date: 15 November 1937
• Docket Number: No. 3.,3.
• Citation: 194 A. 879,119 N.J.L. 175
• Parties: STATE v. ORLANDO.
• Court: New Jersey Supreme Court

194 A. 879

119 N.J.L. 175

STATE

v. ORLANDO.

No. 3.

Supreme Court of New Jersey.

November 15, 1937.

Syllabus by the Court.

1. On the trial of an indictment for rape the evidence examined and held that a motion made by the defendant at the close of the State's case to strike out the count for rape was properly denied.

2. On the trial of an indictment for rape the entire evidence examined and held that the verdict of guilty was not against the weight of the evidence.

3. On the trial of an indictment for rape, the details of the prosecutrix' complaint as made to another are admissible in evidence for the purpose of rehabilitating the credibility of the prosecutrix after she has testified as a witness and has been impeached on cross-examination.

4. An instruction that in order to convict a defendant of rape the jury must find that he had sexual intercourse with the prosecutrix forcibly and against her will, and that there must be a penetration by the sexual organ of the male into the sexual organ of the female and that the slightest penetration is sufficient is a correct instruction.

5. Where the sentence imposed by the trial judge for a given crime is within limits imposed by the Legislature, the mere fact that it is regarded by some as severe affords no ground for judicial interference, for such Interference would be a usurpation of the legislative power by the judiciary. It is the character and not the extent of the punishment inflicted as a penalty for the commission of the crime which is struck at by the constitutional provision against cruel and unusual punishment.

Error to Court of Quarter Sessions of Somerset County.

Angelo Orlando was convicted of rape and he brings error.

Judgment affirmed.

Argued October term, 1937, before BROGAN, C. J., and TRENCHARD and PARKER, JJ.

Morris Cohen, of Morristown (Frederick A. Pope, of Somerville, of counsel), for plaintiff in error. Clarkson A. Cranmer, prosecutor of the pleas, and T. Girard Wharton, ass't prosecutor of the picas, both of Somerville, for defendant in error.

TRENCHARD, Justice.

The plaintiff in error (hereinafter called defendant) was indicted and convicted of rape committed upon Matilda Kurzna (hereinafter called prosecutrix) on April 4, 1937, in Bernardsville.

The defendant was 30 years old and unmarried and was an automobile mechanic living in Bernardsville. The prosecutrix was 20 years old, unmarried, and resided with her father and sister for whom she kept house, in Bloomfield, where she had lived all her life.

The defendant assigns error on alleged exceptions at the trial and also assigns reasons for reversal under section 136 of the Criminal Procedure Act (2 Comp.St.1910, p. 1863, § 136).

The State's case tended to show (among others) the following matters of fact: On Sunday, April 4, 1937, at the prior invitation of a "boy friend," whom she had known for several years, the prosecutrix journeyed from her home to Bernardsville by train for the purpose of visiting the boy's mother. The boy met her at the station and introduced her to the defendant. She had not met the defendant before, but did know his sister. In the course of the afternoon several others joined the party, including the defendant's sister. Towards night it was understood that the party, who had two automobiles, would take the prosecutrix to her home in Bloomfield. As they were preparing to go, the defendant insisted that the prosecutrix should go with him alone in his car. The party started and as they went through the village the defendant left the other car and turned off the main road into a section occupied by golf links, against the objection of the prosecutrix, and instead of taking her home, he drove on the fairway and parked his car, and immediately made improper advances to her which she resisted. She insisted upon being taken home. This the defendant promised, and started to do, but drove only a short distance on the golf course and stopped. He had been drinking beer and said that he felt dizzy and that they should go for a walk. They both got out and walked around for a brief period (she thinking, so she testified, that she would have a better chance to get away from him if necessary). They then returned to the car when the defendant made further advances, putting his hand under her clothing again. She then jumped out of the car and started to run. Defendant pursued her "quick as a flash" and threw her down and "pinned her to the ground." She testified that she struggled, fought, pleaded with him to release her, screamed, and prayed, but to no avail, because "he was very strong and I could not get away from him" and that defendant then and there had carnal knowledge of her forcibly and against her will. Finally after he had obtained a promise from her to return to him, she persuaded him to take her to a drug store to get something to quiet her nerves, and he released her and drove her to a drug store in Bernardsville. She entered, leaving the defendant outside, where he waited a while and then departed. In the drug store she saw the clerk. She immediately complained to him of the assault upon her, and requested him to call the police by telephone. The clerk gave her first aid treatment, and in response to the call the chief of police arrived quickly. She related to him, while still in a very nervous and highly hysterical condition, the attack made upon her by the defendant. Immediately the chief of police took her to the office of Dr. Voss in Bernardsville who examined her, and she related to him the fact that she had been attacked by the defendant. After the examination she was escorted by the chief and his wife to her home in Bloomfield, there being no local magistrate accessible that night. She complained to her sister of the attack upon her. She returned to Bernardsville the next morning of her own volition and made formal complaint against the defendant for rape. Defendant was brought before the magistrate. A hearing was subsequently had which resulted in an indictment by the grand jury and the conviction now under review.

Several witnesses testified as to the physical condition and appearance of the prosecutrix immediately, or within an hour or two after the attack. All agreed that she was crying, very nervous, shaking, trembling all over, and bordering on hysteria. There was a scratch on her cheek, her lower lip was cut and bleeding, was quite swollen and puffed up and protruding considerably beyond the upper lip. Her stockings were torn, her hat was torn, and her clothing was generally disheveled and muddy Dr. Voss testified that there was a bruise on the inner side of her right thigh; the external vaginal tract was markedly irritated and red, and internally there was "a spot of blood where the hymen should have been"; that "there was a marked spasm of the muscles of the genitalia and that she was cold and did not appear very strong and had practically to be supported.'

At the close of the State's case defendant moved to strike out the count for rape, which motion was properly denied, and the case proceeded and was submitted to the jury.

We have examined with care the defendant's own 'testimony, together with that of the witnesses called by him, including the medical testimony. The defendant testified in effect that she had consented, and suggested that the sexual intercourse was not complete; but a reading of his own testimony, which contained damaging admissions, and the other testimony produced by him, results in the conclusion that the testimony of the prosecutrix respecting all of the essentials of rape was true; at least so the jury could reasonably, and did, find; and it is evident that the contention that the verdict was against the weight of the evidence fails.

The defendant argues that the judgment should be reversed because of the admission of certain testimony of Dr. Voss relating to statements made to him by the prosecutrix when he examined her within an hour or two after the attack upon her.

The basis of the contention is that he was not acting as a "treating physician." While that is by no means clear, we have examined the question of the legality of the testimony.

We chose to examine it, even though it is urged with much force by the State that the testimony in question was taken without any legally sufficient objection or exception thereto.

Of course, on a trial for rape, a complaint made soon after the assault by the woman assaulted is admissible in evidence.

We also recognize the rule that the particulars of the transaction, as detailed by the prosecutrix to another, are not generally legal evidence on such trial.

But there is an exception to that general rule which the case at bar presents. We think that the testimony was properly admitted for the purpose of rehabilitating the credibility of the prosecutrix in the circumstances of this case. And in reaching that conclusion, of course, we lay to one side the contention of the State that it was properly admitted on other grounds.

Now it is widely held in rape cases that evidence of the details of the complaint of the prosecutrix as made to another is admissible for the purpose of "rehabilitating the credibility" of the prosecutrix after, as here, she has testified as a witness and has been impeached and the credibility of her testimony has been attacked on cross-examination. 2 Wigmore on Evidence (2d Ed.) § 1138, § 1760; 22 R.C.L. 1215, par 48, n.i.; 3 Greenleaf on Evidence (16th Ed.) § 213; Underhill Crim.Evidence (4th Ed.) § 668, and cases there cited.

The theory upon which such details are admitted is that where the testimony of the complaining witness has been impeached her credibility may be restored or rehabilitated by showing that she told the same story at the time of making complaint. 2 Wigmore on Evidence (2d Ed.) § 1137B and cases cited. It is not admitted as strictly corroborative nor as substantive proof. That there is a clear distinction between "c...