State v. Pitman

• Court: New Jersey Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State v. Pitman, 119 A. 438 (N.J. 1922)
• Decision Date: 27 May 1922
• Docket Number: No. 6.,6.
• Parties: STATE v. PITMAN.

119 A. 438

STATE

v. PITMAN.

No. 6.

Supreme Court of New Jersey.

May 27, 1922.

Error to Court of Quarter Sessions, Essex County.

Roy A. Pitman was convicted of statutory rape, and he brings error. Reversed and venire de novo awarded.

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

Braelow & Tepper and Meyer E. Ruback, all of Newark, for plaintiff in error.

J. Henry Harrison and John A. Bernhard, both of Newark, for the State.

PER CURIAM. The plaintiff in error was convicted on an indictment which charged in the first count that he did on the 8th day of October, 1920, with force and arms, etc., commit an assault and battery upon one Ethel Parks, and in the second count that he, being above the age of 16 years, did unlawfully and carnally abuse Ethel Parks, she being then and there a woman child over the age of 12 years and under the age of 16 years. The indictment charged a statutory rape under section 115 of the Crimes Act. 2 Comp. St. page 1783.

The record before us presents an abnormal phase, which ought not to escape judicial notice and comment. It is a fundamental legal proposition, made inviolable by constitutional guaranty, that one accused of crime shall be informed of the nature of the accusation against him, in the form of an indictment found and presented by a grand jury. In the present ease the indictment charged the plaintiff in error with having committed a statutory rape on October 8, 1920. There was no question that the indictment stated the true date of the alleged commission of the crime as found by the grand jury. This case did not present the feature of an indictment containing a wrong or impossible date, under which circumstances the court could properly permit the prosecutor to prove the true date and cause the indictment to be amended to that effect, indorsing such amendment upon the indictment, in conformity with sections 33 and 34 of the Criminal Procedure Act (2 Comp. St. (pp. 1831, 1832). What happened in the present case was that the court permitted the prosecutor to introduce testimony tending to show that the plaintiff in error committed a statutory rape upon the prosecutrix, not only on the 8th day of October, 1920, as charged in the indictment, but also on three other days, namely on the 4th, 11th, and 15th of October. Such a course of procedure was unwarranted. It is true that counsel of plaintiff in error made no objection to the introduction of the improper testimony, and it is not made one of the causes for reversal, but it has a material bearing on another branch of the case, which will be discussed later on.

The first ground relied on by counsel of plaintiff in error for a reversal of the judgment is directed at what the trial judge said to the jury as to the age of the prosecutrix. On the topic in question he instructed the jury as follows:

"The point which has been stressed in the whole case is the age of the girl; that the age of the girl has not been proved. She was 10 on November 17, 1920, as my notes show."

And again:

"The jury must find the defendant not guilty unless they are convinced beyond a reasonable doubt that the act charged in the indictment against the defendant occurred before November 17, 1920, on which date the girl became 16 years of age."

Age of the prosecutrix was the essence of the offense. Her age was a question of fact to be determined on the evidence before it. The mere fact that the mother of the prosecutrix and the latter testified that she did not become 16 years of age until November 17 did not import absolute verity which the jury was bound to accept. The jury were entitled to consider whether the mother and daughter were truthful; whether they had an interest in falsifying as to the age of the prosecutrix. This the court did not permit the jury to do. He told the jury that his notes show that the prosecutrix was 16 years of age on November 17.

Of course the judge's notes do not take the place of the testimony. The jury must decide the case on the evidence: It is prejudicial error for a judge to attempt to influence a jury in the finding of an essential fact by saying that his notes show that the prosecutrix became of age on November 17. A jury might readily infer...