State v. Smith
| Court | New Jersey Superior Court – Appellate Division |
| Writing for the Court | PER CURIAM |
| Citation | 404 A.2d 331,169 N.J.Super. 98 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Albert SMITH, Defendant-Respondent. |
| Decision Date | 13 June 1979 |
Page 98
v.
Albert SMITH, Defendant-Respondent.
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...
To continue reading
Request your trial
-
State v. Oliver
...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
...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.
...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
...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......
-
State v. Oliver
...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
...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.
...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
...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......