State v. Raymond

• Decision Date: 25 May 1962
• Docket Number: No. A--906,A--906
• Citation: 181 A.2d 515,74 N.J.Super. 434
• Parties: STATE of New Jersey, Plaintiff-Respondent. v. Benedict RAYMOND, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 434

74 N.J.Super. 434

181 A.2d 515

STATE of New Jersey, Plaintiff-Respondent. v. Benedict RAYMOND, Defendant-Appellant.

No. A--906.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 5, 1962.

Decided May 25, 1962.

Calvin J. Hurd, Elizabeth, for appellant.

Peter Murray, Asst. Prosecutor, for plaintiff Brendan T. Byrne, County Prosecutor of Essex County, Atty.).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Defendant appeals from a conviction upon a two-count indictment which charged him, in the first count, with having been 'in private guilty of an act of lewdness' with one P, contrary to N.J.S. 2A:115--1, N.J.S.A., and, in the second count, with then and there forcing and inducing said P 'to submit to the doing of an act tending to debauch the said (P) and impair the morals of the said (P),' contrary to N.J.S. 2A:96--3, N.J.S.A.

Defendant's defense was that of an alibi. He did not take the stand, but produced witnesses who said he was elsewhere at the time of the alleged crime.

P testified that on Saturday, September 10, 1960, at about 6 P.M. he and his boy friend C went to the home of one B, an adult; B gave them money to go to the movies; they left the movies about 11:30 P.M. and started to hitchhike home; defendant picked them up in his automobile, took them to his apartment, gave them liquor and other refreshments, had relations with them described as 'carnal lingualism' and, about 10 A.M. Sunday, at P's request, drove P and C to B's apartment. B then drove P and C to P's home in East Orange. B knew P's parents, having lived in the same building with them previously. B entered the apartment of P's parents with P and C, but left almost immediately. P's and C's parents then questioned the boys, who first said they had slept in an abandoned house. They finally told their parents of their stay at defendant's apartment and what allegedly happened, which led to defendant's arrest.

In his statement of questions involved defendant raises the question whether 'the restriction of cross examination of juvenile witnesses concerning indecencies with one (B) not party to these proceedings a few hours before the subject acts constitutes reversible error?'

The 'juvenile witnesses' were P and his friend C. Defendant's brief says '(P) stated he went to (B's) house about 6:00 P.M. * * *, just prior to going to the movies, for a soda and for the purpose of getting money from him. The true purpose of the visit (indecencies tinged with prostitution) was not disclosed to the jury due to the action of the prosecutor and the trial court in refusing defendant opportunity to interrogate along these lines.' The brief concludes that this was erroneous and prejudicial because it went 'to the crediblity of (P), and to the impairment of his morals and whether he could be debauched, essential elements of the second count of the indictment * * *.' At the oral argument before us, defense counsel added that the exclusion was prejudicial because the evidence sought 'goes to the question of whether or not there was in fact force or inducement.'

The element of prejudice because of inability to introduce this evidence to negative force disappeared because the trial judge instructed the jury that there was no evidence of force.

As to whether the evidence sought went 'to the question of * * * inducement,' we hold that if defendant asked P to submit to carnal lingualism, and P did so, the mere fact that P had had similar relations with B before P met defendant would not negative inducement. N.J.S. 2A:96--3, N.J.S.A., is for the protection of children under 16. We hold that a mere invitation to a child of that age to submit to indecent acts, if accepted, is sufficient inducement to constitute the crime defined in that statute. In the case at bar the evidence showed more than mere invitation. The testimony was that defendant felt P's privates as they drove towards defendant's apartment, defendant invited P and C into the apartment, and there he gave them refreshments, including alcoholic beverages, before engaging in the act with P. Thereafter he invited P and C to stay the night, during which he repeated the act with P.

We hold also that if P submitted to the act at defendant's request, the fact that P had had previous similar relations with others did not make defendant's act one which did not tend to debauch P or impair his morals, within the meaning of N.J.S. 2A:96--3, N.J.S.A. It is not necessary for the State to prove, under that statute, that the child was not debauched, or his morals more impaired after the act than they were before. The statute forbids the performance of acts which tend to debauch the child or impair his morals--whether they actually did so is immaterial. It follows that the proffered evidence of P's prior relations with B, to prove that P was already debauched and his morals impaired, was properly excluded.

Was the evidence admissible for the purpose of attacking P's credibility? To begin with, it must be remembered that 'the trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is put in issue.' State v. Pontery, 19 N.J. 457, 473, 117 A.2d 473 (1955). To determine whether that discretion was abused in this case we must examine the question asked against the background of the issues presented and the evidence as it stood at the time the question was asked.

Defendant's counsel was permitted to ask P many questions on cross-examination about his friendship with and visits to B, all of which were answered. Then came the following:

'Q. Isn't it true that on that night you didn't even see Benedict Raymond but had seen (B) instead? A. No.

Q. Isn't it true that these acts that you said were performed between you and Benedict Raymond were in fact performed between you and (B)? A. No.

Q. How long had you known (B) before this night? A. We used to live in the apartment, about six years ago.

Q. Six years ago? A. We used to live there at that time and within that time I met him.

Q. You knew him for six years then? A. Yes.

Q. You visited him from time to time during the six-year period? A. Yes.

Q. You had gone up to his apartment? A. Yes.

Q. Isn't it true also that you had been intimate with him?'

When this was objected to, the judge asked 'You mean on some other occasion?,' to which counsel answered 'Yes.' Counsel did not then tell the judge, as he now argues to us in his brief, that the question referred to the evening before the crime and that its purpose was to show that P's testimony that he had gone to B's apartment only for movie money was false. Therefore, when counsel said he wished to inquire as to relations with B 'on some Other occasion,' the trial judge properly exercised his discretion to follow the rule applied in the parallel case of statutory carnal abuse. 'In a prosecution for carnal abuse under the statute, the element of nonconsent is eliminated, so that evidence of sexual intercourse with other men is ordinarily incompetent as introducing an irrelevant issue,' State v. Rubertone, 89 N.J.L. 285, 287, 98 A. 253 (E. & A. 1916), and such evidence ordinarily '(is) not admissible on the theory of discrediting the witness.' State v. Lodeserto, 3 N.J.Misc. 1091, 1092, 130 A. 722, 723 (Sup.Ct.1925). See also State v Tetrault, 78 N.H. 14, 95 A. 669, 670 (N.H.1915); Annotations, 140 A.L.R. 364, 376 (1942) and65 A.L.R. 410, 425 (1930). Insofar as the subject of the excluded question is contended to have been relevant in attacking P's credibility in testifying that his visit to B was only for innocent purposes, we think that the previous interrogation of the witness, including that quoted above, sufficiently covered the point so as to obviate any claim of prejudicial error in the exclusion of the question now contested.

For the foregoing reasons, we perceive neither abuse of discretion nor prejudice in excluding the quoted question, asked of P on cross-examination.

C, who followed P on the stand, did not mention B in his direct testimony. During C's cross-examination, defense counsel asked for and received a copy of C's statement to the police, in which C had told of the visit to B before going to the movies on the night in question. Defense counsel began to interrogate C on that statement about that visit, but the prosecutor objected. The judge examined the statement and said, 'Let us state for the record that the statement * * * refers to a visit at the home of (B) * * * and refers to an act of indecency there committed allegedly by (P) with (B). This incident according to this statement evidently took place before the visit to the movies.' The following ensued:

'The Court: How far do you propose to go into this matter, Mr. Hurd?

Mr. Hurd: To the extent disclosed in the statement.

The Court: To the extent what?

Mr. Hurd: Disclosed in the state ment of (C).

The Court: You intend to inquire, I take it, from this witness as to what occurred according to this witness's statement at (B's) house between (P) and (B). Is that right?

Mr. Hurd: That's right.

The Court: On what theory?

Mr. Hurd: * * * (C) went to the house with this (P) at about 6:00 or 6:30. The witness (P) testified that the only thing that took place there was that he got some money from (B) and nothing else, and was only there a matter of minutes. The statement of (C) shows quite a different set of circumstances...