State v. Spallone

• Decision Date: 06 March 1922
• Docket Number: No. 98.,98.
• Citation: 117 A. 151
• Parties: STATE v. SPALLONE.
• Court: New Jersey Supreme Court

117 A. 151

STATE

v. SPALLONE.

No. 98.

Court of Errors and Appeals of New Jersey.

March 6, 1922.

(Syllabus by the Court.)

A "cause for reversal" under section 137 of the Criminal Procedure Act, attacking as erroneous a lengthy excerpt from the charge, which contains several distinct propositions, is ineffective if one of such propositions is well founded in law.

On the trial of an indictment for assault with intent to rape, evidence that the female on whom the assault is claimed to have been committed made complaint thereof soon after the assault is competent. State v. Ivins, 36 N. J. Law, 233, followed.

(Additional Syllabus by Editorial Staff.)

Error to Supreme Court.

Antonio Spallone was convicted of assault and battery with intent to! rape, and he brings error. Affirmed.

The per curiam opinion of the Supreme Court is as follows:

"The plaintiff was convicted on an indictment charging him with assault and battery with intent to commit rape on one Elizabeth Miller. Only two grounds of reversal are relied upon, and each one of them is directed to the charge to the jury.

"The first instruction complained of comprises two printed pages in the state of the case.

It begins as follows: 'It sometimes is very helpful, in weighing and appraising contradictory statements of fact, to look at the collateral circumstances. What did the people concerned do? How did they act? How did their conduct comport with the probabilities of human experience? The defendant says he went there to collect rent. That may be true. * * * The defendant went to the rear of the first floor, and, according to the story of the complaining witness, gained access through an unlocked door, and went into the living room, where he found this young woman in partial state of undress, having recently come from the bath. Did the conversation take place in the entrance way? And was it confined to the question of rent? Or did he enter the living room, and, when there, confronted by this situation which she says was then presented, did he forget that he had come for the rent, and proceed to the consideration of other aspects of a visit which he was then making? What did the woman do? She says that she protected herself from his suggestions and from his attacks, and caused him to flee,' etc.

"Manifestly, the instruction complained of. so far as we have recited it, is legally unobjectionable; and it is entirely settled that where a portion of a charge to the jury, which has been excepted to, contains matters the soundness of which cannot be legally challenged, the exception must fall. The conviction cannot be reversed, therefore, upon the ground of error in this part of the charge.

"The only other ground of reversal relied on is directed to the following statement in the instructions to the jury: 'Mrs. Miller was living in an apartment house owned by the wife of the defendant. She was alone, according to her testimony; her husband being away on business, and her little son having gone to choir practice. She had returned from her occupation somewhat earlier than usual to take a bath; she had partially completed dressing, and was sitting in her living room, when, she says, the defendant came in. She then details a series of acts which, if true, would, without question, justify a verdict of guilty, as charged, at your hands.' The objection is to that part of the charge contained in the last sentence; and it is said that by this language the defendant was denied the benefit of the reasonable doubt that might be engendered by the testimony given by the witnesses as to whether he was guilty of assault and battery only, or of the graver crime of assault with intent to rape. We do not think the language complained of at all supports the inference attributed to it, when read in connection with the other parts thereof. The court had already charged the jury that the defendant was entitled to the...