State v. Ruttberg

• Decision Date: 23 February 1915
• Parties: STATE v. RUTTBERG.
• Court: New Jersey Supreme Court

93 A. 97

87 N.J.L. 5

STATE

v. RUTTBERG.

Supreme Court of New Jersey.

Feb. 23, 1915.

Error to Court of Quarter Sessions, Union County.

Colman Ruttberg was convicted of fornication, and brings error. Reversed.

Argued June term, 1914, before GUMMERE, C J., and GARRISON and MINTURN, JJ.

William Newcorn, of Plainfield, for plaintiff in error. Alfred A. Stein, Prosecutor of the Pleas, of Elizabeth, for the State.

GUMMERE, C. J. The defendant was indicted and convicted of the crime of fornication with one Justina W. The case comes up for review under section 136 of the Criminal Procedure Act.

The first ground alleged for reversal is that the evidence does not support the verdict; the argument being that it is not of such a character as to satisfy considerate minds, beyond a reasonable doubt, of the guilt of the defendant. But, as was pointed out by the Court of Errors and Appeals in State v. Jaggers, 71 N. J. Law, 281, 58 Atl. 1014, 108 Am. St Rep. 746, and again in State v. Herron, 77 N. J. Law, 524, 71 Atl. 274, even in those cases in which the entire record of the proceedings had upon the trial is returned with the writ, pursuant to the statute, the court of review is not authorized to pass upon the weight of the testimony adduced at the trial. The limit of its jurisdiction is to determine whether there was sufficient evidence to justify the submission of the case to the jury; and that there was, in the cause now before us, we have no doubt.

It is next contended that it was harmful error to overrule questions asked of the defendant's wife (who was called as a witness by him), tending to show that, for a number of years prior to the date upon which the offense was alleged to have been committed, he was physically incapable of indulging in sexual intercourse. The ground upon which this ruling was rested seems to have been that proof of sexual incapacity could only be shown by the testimony of a duly qualified physician. But such a theory has no legal support. The question for the jury to determine was whether the defendant had engaged in the sexual act with Justina W. Manifestly that must have depended upon whether he had sufficient virility to be capable of that act; and the testimony of one of the opposite sex, who had personal knowledge of his physical condition from long-continued and intimate association with him was not only competent, but, if believed, potent, evidence upon that point. The exclusion of this testimony was harmful error.

It is further contended that the court improperly permitted the state to cross-examine the defendant, over objection, with regard to alleged illicit relations between himself and one Mary V., and, he having denied them, to call Mary V. as a witness and allow her to contradict him. It...