State v. Sorge

• Decision Date: 10 October 1940
• Docket Number: No. 11.,11.
• Parties: STATE v. SORGE.
• Court: New Jersey Supreme Court

15 A.2d 776

STATE

v. SORGE.

No. 11.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Appeal from Supreme Court.

Proceeding by the State of New Jersey against Dominick Sorge upon a charge of rape. To review a judgment of the Supreme Court reversing conviction and granting new trial, 123 N.J.L. 532, 10 A.2d 175, the State brings error.

Affirmed.

Arthur C. Dunn, Prosecutor of the Pleas, and Peter J. McGinnis, Asst. Prosecutor of the Pleas, both of Paterson, for plaintiff-inerror.

Charles W. Chadwick, of Newark (Anthony A. Calandra, of Newark, of counsel), for defendant-inerror.

PER CURIAM.

The judgment is affirmed for the reasons expressed in the opinion of Chief Justice Brogan.

Since the interests of justice plainly demand a retrial of the issue, we deem it prudent to discuss certain of the State's contentions.

Pointing to the observation of the Chief Justice that "the witness, Pirola [the police officer], might with legal propriety have testified to what had happened on the occasion in question and to what he had seen and heard from Miss McClaren when confronted by Sorge, and in turn what the defendant said upon being confronted by Miss McClaren," [10 A.2d 177, 123 N.J.L. 532], the State maintains that "this is all that was done on the occasion in question;" that Pirola's "statement was not read into the evidence as indicated by the Supreme Court, but that the witness used it to refresh his memory as to what had been said;" that "the statement was not put in evidence;" and that the Supreme Court had failed to appreciate "the difference between the actual admission of the statement in evidence and the reading it by Pirola for the purpose of refreshing his memory as to what was said to the defendant by the complaining witness in her statement." The argument continues: "Consequently if orally she had repeated to the defendant the things she had said in hex written statement, it would have been evidential without question. What is the difference then in principle of having reduced her charge to writing and then read to him? * * * What Mr. Pirola did by his testimony was to reproduce a scene and a colloquy between the defendant and the complaining witness * * *, thus bringing out admissible evidence as to defendant's reactions and responses to the charges."

The State is manifestly under a misapprehension as to the nature of the error found by the Supreme Court and the ground upon which the reversal was rested. Concededly, the statement was read aloud by the witness in the presence of the jury; and it was received as intended for their ears. Acknowledging that the accused's "comment" on the statement, when read in his presence, was that the act of intercourse "was with her consent," the State's attorney nevertheless insisted at the trial that its contents were admissible "to show a course of conduct—the manner in which the defendant reacted; * * * so that" the State "may argue to the jury why did he not say this, or that, in answer to the girl's statement or accusation, there being such a charge or accusation made against him, dealing with the various details that she gave in this signed statement." And the trial judge ruled thus: "You can do it orally without having her statement in evidence;" whereupon, the witness was directed to "read the whole statement over," and to "tell us after refreshing your recollection from the...