State v. Toohey, A--454

• Decision Date: 04 January 1950
• Docket Number: No. A--454,A--454
• Citation: 70 A.2d 180,6 N.J.Super. 97
• Parties: STATE v. TOOHEY.
• Court: New Jersey Superior Court — Appellate Division

Page 97

6 N.J.Super. 97

70 A.2d 180

STATE v. TOOHEY.

No. A--454.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 21, 1949.

Decided Jan. 4, 1950.

Robert J. McCurrie, Newark, argued the cause for defendant-appellant (James J. Farley, Newark, attorney).

C. William Caruso, Newark, argued the cause for plaintiff-respondent (Duane E. Minard, Jr., Essex County Prosecutor, Newark).

Before Judges JACOBS, DONGES and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The appellant was indicted and convicted of an act of lewdness committed in private, contrary to the provisions of R.S. 2:140--1, N.J.S.A.

The alleged actions on which the State relied were done in a sedan standing on a public street in Irvington. From this, the defendant contends that he could not have been guilty of private lewdness, but only of public. Assuming that the indictment should have characterized the alleged acts as public rather than private lewdness, still there is here no ground for reversal. The defendant was not misled as to the matters of which he was accused, or prejudiced in his defense. State v. Spriggs, 106 N.J.L. 4, 147 A. 641 (Sup.Ct.1929).

The defendant, upon his arrest, and a small boy who was found with him, were taken to the police station. Soon the boy's mother arrived. The mother asked her son questions,--leading questions,--and his answers added up to a charge of lewdness against the defendant. The defendant was in the same room, only five or six feet away, while this conversation was taking place. He did not, at the time, deny the truth of the boy's statement but remained silent. Evidence of the child's statements and the defendant's silence was received over the defendant's objection.

The general rule is entirely settled that evidence is admissible of a statement relevant to the offense charged if it is made in the presence of the accused and if the truth of the statement is not denied by him at the time. Donnelly v. State, 26 N.J.L. (* 463) 504; affd. idem 601 (1857); State v. Friedman, 136 N.J.L. 527, 56 A.2d 875 (E. & A. 1948). If the witness testifies that the defendant did speak up and deny the charge, proof of the accusatory statement is not admissible. 'It is requisite that the conduct of the accused reasonably justify the conclusion of assent, express or implied, to the truth of its contents.' State v. Sorge, 123 N.J.L. 532, 10 A.2d 175, 177 affd. 125 N.J.L. 445, 15 A.2d 776 (1940). The appellant in the instant case objects particularly because the alleged statement was made while he was under arrest. The testimony should not be admitted if it appeared that the declaration 'was made in the course of a judicial inquiry, or when circumstances existed which rendered a reply inexpedient or improper, or that fear, doubts of his rights, or a belief that his security would be better promoted by silence than by a response, governed him at the time.' Donnelly v. State, supra, 26 N.J.L. at p. 612. The statement 'must also have been made on an occasion when a reply from him might properly be expected.' Roesel v. State, 62 N.J.L. 216, 235, 41 A. 408, 415 (E. & A. 1898). In that case, a detective had told the prisoner that he needn't say anything at all if he didn't want to. The court held that his silence could not be used as an admission. But our precedents clearly establish that the circumstance that the defendant is under arrest does not by itself make the declaration inadmissible. State v. Rosa, 72 N.J.L. 462, 62 A. 695 (E. & A. 1905); State v. Morris, 94 N.J.L. 19, 108 A. 765; affd. idem 567 (1920). For cases from other jurisdictions, see Annotation, 80 A.L.R. 1259 and 115 id. 1517.

The boy in the case before us was only four and a half years old. If he had been offered as a witness, his testimony would not have been received and so, the defendant argues, evidence of his accusation is inadmissible. But our law does not support the objection. 'While the thing that is proved is the statement made to the party, the thing that proves it, i.e., the thing that makes it evidence, is the act of the party himself, viz., his silence.' State v. MacFarland, 83 N.J.L. 474, 484, 83 A. 993, 996, Ann.Cas.1914B, 782 (E. & A. 1912). So a statement by the defendant's wife has been accepted. State v. Laudise, 86 N.J.L. 230, 90 A. 1098 (E. & A. 1914). And an identification by a four-year-old child. State v. Claymonst, 96 N.J.L. 1, 114 A. 155 (Sup.Ct.1921).

The defendant testified that he did not hear what the boy said to his mother. Where the situation is such that the defendant may have heard the statement, the question whether he actually heard it, or...