State v. Smith

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtPER CURIAM
Citation404 A.2d 331,169 N.J.Super. 98
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Albert SMITH, Defendant-Respondent.
Decision Date13 June 1979

Page 98

169 N.J.Super. 98
404 A.2d 331
STATE of New Jersey, Plaintiff-Appellant,
v.
Albert SMITH, Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued May 14, 1979.
Decided June 13, 1979.

[404 A.2d 332]

Page 99

Andrea R. Grundfest, Asst. Prosecutor, Essex County, for plaintiff-appellant (John J. Degnan, Atty. Gen., attorney; Leonard D. Ronco, Acting Essex County Prosecutor, of counsel; Rena Rothfeld, on the brief).

Before Judges FRITZ, BISCHOFF and MORGAN.

PER CURIAM.

The only issue implicated in this appeal concerns the question of whether a man may be convicted under N.J.S.A. 2A:138-1 for the rape of his wife. In a thoughtful and scholarly opinion, Judge Scalera below reluctantly held that he could not. 148 N.J.Super. 219, 372 A.2d 386 (Cty.Ct.1977). Accordingly he dismissed the count of the

Page 100

indictment against Smith which charged him with this rape. 1 We granted the motion of the State for leave to appeal.

Although a great deal of that which is said in the opinion below has our collegial agreement, including our hearty concurrence as to the fatally anachronistic nature of Sir Matthew Hale's view regarding the eternal irrevocability of a wife's consent to submit to her husband sexually, we do not all uniformly subscribe to everything that is there said. We readily acknowledge the responsibility of all judges not to depart from pronouncements of superior appellate courts, Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 415, 169 A.2d 814 (1961), In re Education Ass'n of Passaic, Inc., 117 N.J.Super. 255, 261, 284 A.2d 374 (App.Div.1971), certif. den. 60 N.J. 198, 287 A.2d 458 (1972). We part company with Judge Scalera only in the unlikely event his opinion is read to suggest that the common law is untouchable as far as trial courts are concerned. We have no doubt that the "common law," imported into our jurisprudence by constitutional edict, N.J.Const. (1947), Art. XI, § I, par. 3, is not in any sense immutable. As Justice Jacobs said so succinctly and yet so eloquently in Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 43-44, 141 A.2d 276, 284-285 (1958), "The common law has always had the inherent capacity to develop and adapt itself to current needs; indeed, if this were not true it would have withered and died long ago rather than have grown and flowered so gloriously." While these changes almost invariably are left to legislative action or appellate court pronouncement, we see no reason why...

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10 practice notes
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...one. See State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992); State v. Smith, 148 N.J.Super. 219, 372 A.2d 386 (Cty.Ct.1977), aff'd, 169 N.J.Super. 98, 404 A.2d 331, certif. granted, 82 N.J. 292, 412 A.2d 798, rev'd on other grounds, 85 N.J. 193, 426 A.2d 38 (1981). A trial court does not ha......
  • Daniel v. State, Dept. of Transp., T-K
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 19, 1990
    ...at 203, 495 A.2d 76. It is the responsibility of a trial judge to comply with the pronouncements of a superior court. State v. Smith, 169 N.J.Super. 98, 100, 404 A.2d 331 (App.Div.1979), rev'd on other grounds 85 N.J. 193, 426 A.2d 38 We deem the doctrine wholly inapplicable in this case. I......
  • Bulloch v. United States, Civ. No. 78-1305.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 27, 1980
    ...participated. See, e. g., Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) (interspousal tort immunity abolished); State v. Smith, 169 N.J.Super. 98, 404 A.2d 331 (App.Div.1979) aff'g 148 N.J. Super. 219, 372 A.2d 386 (Cty.Ct.1977), awaiting argument N.J. Supreme Court, (common law rule tha......
  • State v. Smith
    • United States
    • United States State Supreme Court (New Jersey)
    • February 10, 1981
    ...than because the rule did exist at common law and has not been abrogated here by legislation or judicial decision. (169 N.J.Super. at 101, 404 A.2d 331) The appellate court did not agree with the trial judge that it was beyond a trial court's authority to change such a rule of law. Id. at 1......
  • Request a trial to view additional results
10 cases
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...one. See State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992); State v. Smith, 148 N.J.Super. 219, 372 A.2d 386 (Cty.Ct.1977), aff'd, 169 N.J.Super. 98, 404 A.2d 331, certif. granted, 82 N.J. 292, 412 A.2d 798, rev'd on other grounds, 85 N.J. 193, 426 A.2d 38 (1981). A trial court does not ha......
  • Daniel v. State, Dept. of Transp., T-K
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 19, 1990
    ...at 203, 495 A.2d 76. It is the responsibility of a trial judge to comply with the pronouncements of a superior court. State v. Smith, 169 N.J.Super. 98, 100, 404 A.2d 331 (App.Div.1979), rev'd on other grounds 85 N.J. 193, 426 A.2d 38 We deem the doctrine wholly inapplicable in this case. I......
  • Bulloch v. United States, Civ. No. 78-1305.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 27, 1980
    ...participated. See, e. g., Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) (interspousal tort immunity abolished); State v. Smith, 169 N.J.Super. 98, 404 A.2d 331 (App.Div.1979) aff'g 148 N.J. Super. 219, 372 A.2d 386 (Cty.Ct.1977), awaiting argument N.J. Supreme Court, (common law rule tha......
  • State v. Smith
    • United States
    • United States State Supreme Court (New Jersey)
    • February 10, 1981
    ...than because the rule did exist at common law and has not been abrogated here by legislation or judicial decision. (169 N.J.Super. at 101, 404 A.2d 331) The appellate court did not agree with the trial judge that it was beyond a trial court's authority to change such a rule of law. Id. at 1......
  • Request a trial to view additional results

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