State v. Rodesky

CourtUnited States State Supreme Court (New Jersey)
Citation90 A. 1099,86 N.J.L. 220
Docket NumberNo. 132.,132.
PartiesSTATE v. RODESKY.
Decision Date15 June 1914

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Burlington County.

David M. Rodesky was convicted of crime in violation of Crimes Act, § 51. and, such conviction being affirmed by the Supreme Court, he brings error. Reversed.

James Mercer Davis, of Camden, for plaintiff in error. Samuel A. Atkinson, of Mt. Holly, for the State.

GARRISON, J. The plaintiff in error was convicted under an indictment that charged him with committing in private an act of lewdness and carnal indecency. Crimes Act, § 51 (2 Comp. St. 1910, p. 1762). This conviction was affirmed by the Supreme Court, whose judgment is now before us for review under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863).

The acts of lewdness and indecency testified to at the trial by a single witness, a girl of seven years of age, were that, while she and the defendant were alone together in a toilet room, he exhibited to her his private parts and in suum os penem immissit. It was not alleged or proved that force was used or that there was any exposure or debauchery of the female sexual organs. The misdemeanor was therefore radically different from rape or carnal abuse, each of which essentially implies a debauchery of the female sexual organs by those of the male. State v. Hummer, 73 N. J. Law, 714, 718, 65 Atl. 249.

Notwithstanding this radical difference, the state was permitted to prove that after these acts had been several times repeated at intervals of a week or more, and after the brother of the witness had reported to their mother what his sister had told him, the witness herself told her parents. This testimony, which was admitted upon a supposed analogy to the "complaint in rape," was not objected to by defendant's counsel, and hence, even if erroneously admitted, should not lead to a reversal unless manifest injury resulted therefrom to the plaintiff in error. We think that such injury did result from the wrongful use that was made of such testimony in the charge of the court.

In the charge the trial judge properly admonished the Jury as to the importance of corroboration of the testimony of the infant witness, going even to the extent of telling them that "the law requires certain corroboration as an element." This, of course, was too favorable to the defendant, but it shows the emphasis that was laid upon the importance of corroboration. When, therefore, the judge concluded this topic with the instruction "on the question of corroboration you should take into consideration whether Emily (the state's witness) made a prompt complaint," he in effect told the jury that, if they found that a prompt complaint was made by the state's witness, it was a corroboration of the incriminating testimony given by her upon the stand.

This clearly was error without regard to the admissibility of the fact of the complaint.

Even in trials for rape, the...

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8 cases
  • State v. Gambutti, A--291
    • United States
    • New Jersey Superior Court — Appellate Division
    • 14 Junio 1955
    ...v. Spallone, 97 N.J.L. 221, 117 A. 151 (E. & A.1922); State v. Schaeffer, 87 N.J.L. 663, 94 A. 598 (E. & A.1915); State v. Rodesky, 86 N.J.L. 220, 90 A. 1099 (E. & A.1914); State v. Shupe, 86 N.J.L. 410, 92 A. 53 (Sup.Ct.1914); affirmed 88 N.J.L. 610, 97 A. 271 (E. & A.1916); State v. Ivins......
  • State v. Hintenberger, A--560
    • United States
    • New Jersey Superior Court — Appellate Division
    • 5 Octubre 1956
    ...of the female. Accordingly, he urges that since here there was no such contact, the rule is inapposite. See State v. Rodesky, 86 N.J.L. 220, 223, 90 A. 1099 (E. & A.1914). We do not In considering the defendant's argument, this court is ever mindful of the gravity of sex offenses, but becau......
  • State v. Dorsey
    • United States
    • New Jersey Supreme Court
    • 19 Marzo 1974
    ...State v. Goldstein, 72 N.J.L. 336, 62 A. 1006 (Sup.Ct.1906), affd 74 N.J.L. 598, 65 A. 1119 (E. & A. 1907); State v. Rodesky, 86 N.J.L. 220, 90 A. 1099 (E. & A. 1914); State v. Hintenberger, 41 N.J.Super. 597, 125 A.2d 735 As we said in State v. Lair, 62 N.J. 388, 393, 301 A.2d 748 (1973), ......
  • State v. Saccone
    • United States
    • New Jersey Superior Court — Appellate Division
    • 28 Abril 1950
    ...6 N.J.Misc. 965 (Sup.Ct. 1928); State v. Huggins, supra; State v. Shupe, 86 N.J.L. 410, 92 A. 53 (Sup.Ct. 1914); State v. Rodesky, 86 N.J.L. 220, 90 A. 1099 (E. & A. 1914); State v. Schaeffer, 87 N.J.L. 663, 94 A. 598 (E. & A. 1915); State v. Spallone, 97 N.J.L. 221, 117 A. 151 (E. & A. 192......
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