State v. Yanetti

• Decision Date: 19 January 1925
• Docket Number: No. 61.,61.
• Citation: 127 A. 183
• Parties: STATE v. YANETTI.
• Court: New Jersey Supreme Court

127 A. 183

STATE

v. YANETTI.

No. 61.

Court of Errors and Appeals of New Jersey.

Jan. 19, 1925.

(Syllabus by the Court.)

Error to Supreme Court.

Nicholas Yanetti was convicted of carnal abuse (127 A. 927), and he brings error. Affirmed.

Ward & McGinnis, of Paterson, for plaintiff in error.

J. Willard De Yoe, Prosecutor of the Pleas, of Paterson, for the State.

WALKER, Ch. Defendant was indicted for having on June 1, 1922, upon one Anna Sigismondi, a woman child under the age of 16 years, to wit, 13 years, made an assault and then and there did unlawfully carnally abuse her, said Nicholas Yanetti being then and there over the age of 16 years, to wit, of the age of 46 years. The defendant pleaded not guilty and, upon this issue of traverse joined between the state and him, was tried by a jury in the Passaic quarter sessions, and convicted. This conviction he removed into the Supreme Court on writ of error, where it was sustained per curiam. 127 A. 927. The judgment entered upon that affirmance has been removed into this court by writ of error.

The assignments of error to the trial court which were filed in the Supreme Court, and which are reviewable here under the proper general assignment that the Supreme Court erred in the judgment of affirmance which it rendered (Burhans v. Paterson, 123 A. 883), are four in number: (1) Because at the close of the state's case, it appearing from the testimony that the complaining witness, Anna Sigismondi, had testified that the defendant had sexual intercourse with her some time in the month of June, but that her recollection as to it being in the month of June was because it was summer time, and she had made a note of it, which note she had lost, and no other evidence having been offered by the state fixing the time of the commission of the offense, the trial court denied defendant's motion for the direction of a verdict of acquittal, on the ground that there was no proof showing the offense to have been committed at the time mentioned in the indictment; (2) because, at the close of the state's case, the trial court denied defendant's motion for the direction of a verdict of acquittal, on the ground that there was a variance between the proof and the time alleged in the indictment; (3) because, at the close of the whole case, the trial court denied defendant's motion for a direction of a verdict of acquittal, on the ground stated in assignment No. 1; (4) because, at the close of the whole case, the trial court refused defendant's motion for the direction of a verdict of acquittal, on the ground stated in assignment No. 2; (5) because the court sentenced the defendant, etc., when no sentence should have been imposed. This is formal, and points out no error.

The principal reliance of the defendant for reversal is upon the case of State v. Sing Lee, 94 N. J. Law, 266,110 A. 113, wherein a count in the indictment charged that the defendant carnally abused the prosecutrix on the 10th day of June, which was amended by order of the court by substitution for that date of the dates June 1st and 3d,...