State v. Smith

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

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 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 the trial court, in situations such as this one where neither legislative fiat nor superior precedent constrains, should not contribute to this growth process on the rarely appropriate occasion.

We do not in any sense criticize Judge Scalera, for discretion, caution and compelling and apparent need are narrow gates through which any proposed change in a rule bearing the imprimatur of time first must pass. Indeed, he recognized this in his surrender to a "compelling force derived from our system of jurisprudence which must not be lightly disregarded." 148 N.J.Super. at 233, 372 A.2d at 393. But his proper concern for the "principles of (common) law that bind us" and his refusal to "depart from the common law rule because (such a departure) is unfair and discriminatory" to this defendant in the creation of "criminal responsibility where none has heretofore existed," (148 N.J.Super. at 233, 372 A.2d at 393) wholly laudable and entirely correct with respect to this defendant and the principles of fair play which we sometimes call due process must not be mistaken for an absence of authority where there is no other legislative or judicial constraint.

Having said this, we record our concurrence with the result below and the ultimate reason for it. There is ample reasonable cause to believe...

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10 cases
  • State v. Oliver
    • United States
    • New Jersey Superior Court
    • November 8, 1996
    ...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 have th......
  • Daniel v. State, Dept. of Transp.
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 19, 1990
    ...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. Initially......
  • Bulloch v. United States
    • United States
    • U.S. District Court — District of New Jersey
    • March 27, 1980
    ...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 that man may not ......
  • State v. Smith
    • United States
    • New Jersey Supreme Court
    • February 10, 1981
  • Request a trial to view additional results

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