On writ of error to the Morris County Quarter Sessions Court.
For the defendant in error, Orville V. Meslar, prosecutor of the pleas.
For the plaintiff in error, Algernon T. Sweeney.
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
CASE, J. The defendant was indicted and convicted under section 50 of the Crimes act (2 Comp. Stat., p. 1761), which reads as follows:
"Any single man over the age of eighteen years, who, under promise of marriage, shall have sexual intercourse with any single female of good repute for chastity, under the age of twenty-one years, she thereby becoming pregnant, shall be guilty of a high misdemeanor, and punished accordingly; but the evidence of the female must be corroborated to the extent required in case of indictment for perjury; and if the man offending marry the female at any time before sentence, the same shall be suspended, and he shall be discharged from custody; and if he marry the female after sentence, he shall be discharged from further imprisonment."
Amongst the essential elements of that offense are that the defendant must be over the age of eighteen years and that the female must be under the age of twenty-one years and of good repute for chastity. The presence of these elements, with others, is necessary to conviction, and the absence of any one of them is fatal to the case of the state. Zabriskie v. State, 43 N.J.L. 640. At the close of the state's case defendant
moved for a direction of verdict of acquittal on the ground that the age of neither the defendant nor the female had been established. The court refused the motion. The defendant proceeded to put in his case, but he did not thereby waive his right to a review of the court's refusal. State v. Contarino, 92 N.J.L. 381. The only testimony in these respects had been given by the complaining witness in that she said that at the time of the trial she was eighteen years of age and that the defendant had told her that he was twenty years of age. The statute requires that the evidence given by the female be corroborated to the extent, required in case of indictment for perjury. What measure of corroboration will suffice need not be considered at this point. There was none. The state had failed to prove the essential elements of the crime charged and an acquittal should have been directed.
At the close of the entire case a further motion for the direction of an acquittal rested upon the single ground that is clearly appeared from the evidence that the defendant, at the commission of the offense, was under the age of eighteen years. A certified record from the New Jersey State Bureau of Vital Statistics, showing the defendant's birth to have been April 6th, 1913, had been admitted in evidence. The defendant's mother testified to the same date of birth. The defendant himself so testified. If that be the true date of birth, the defendant was four months under eighteen years of age at the times of the acts of sexual intercourse, which, according to the allegations of the indictment and the state's proofs, occurred in November, 1930. Accepting, as equivalent to proof of the fact, the complaining witness' testimony of the defendant's statement to her regarding his age, the only corroborating circumstance, if such it was, of that proof that had come into the case since the court's refusal of the first motion for direction was the induction of the defendant to the witness stand and the opportunity of the jury to observe his appearance. The state insists and the court so charged, that the jury, in determining the defendant's age, could take his appearance
as a part of the testimony and unite that to the testimony of the complaining witness in finding the fact. Like any other fact, age is, of course, for the determination of the jury. State v. Lanto, 98 N.J.L. 401; 121 A. 139. But whether, under the circumstances of this case, the appearance of the defendant may be ...