On writ of error to the Court of Quarter Sessions of Somerset county.
For the plaintiff in error, Morris Cohen (Frederick A. Pope, of counsel).
For the defendant in error, Clarkson A. Cranmer, prosecutor of the Pleas, and T. Girard Wharton, assistant prosecutor of the Pleas.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff in error (hereinafter called defendant) was indicted and convicted of rape committed upon Matilda Kurzna (hereinafter called prosecutrix) on April 4th, 1937, in Bernardsville.
The defendant was thirty years old and unmarried and was an automobile mechanic living in Bernardsville. The prosecutrix was twenty years old, unmarried, and resided with her father and sister, for whom she kept house, in Bloomfield, where she had lived all her life.
The defendant assigns error on alleged exceptions at the trial and also assigns reasons for reversal under section 136 of the Criminal Procedure act.
The state's case tended to show (among others) the following matters of fact: On Sunday, April 4th, 1937, at the prior invitation of a "boy friend," whom she had known for several years, the prosecutrix journeyed from her home to Bernardsville by train for the purpose of visiting the boy's mother. The boy met her at the station and introduced her to the defendant. She had not met the defendant before, but did know his sister. In the course of the afternoon several others joined the party, including the defendant's sister. Towards night it was understood that the party, who had two automobiles, would take the prosecutrix to her home in Bloomfield. As they were preparing to go, the defendant insisted that the prosecutrix should go with him alone in his car. The party started and as they went through the village the defendant left the other car and turned off the main road into a section occupied by golf links, against the objection of the prosecutrix, and instead of taking her home, he drove on the fairway and parked his car, and immediately made improper advances to her which she resisted. She insisted upon being taken home. This the defendant promised, and started to do, but drove only a short distance on the golf course and stopped. He had been drinking beer and said that he felt dizzy and that they should go for a walk. They both got out and walked around for a brief period (she thinking, so she testified, that she would have a better chance to get
away from him if necessary). They then returned to the car when the defendant made further advances, putting his hand under her clothing again. She then jumped out of the car and started to run. Defendant pursued her "quick as a flash" and threw her down and "pinned her to the ground." She testified that she struggled, fought, pleaded with him to release her, screamed and prayed, but to no avail, because "he was very strong and I could not get away from him" and that defendant then and there had carnal knowledge of her forcibly and against her will. Finally, after he had obtained a promise from her to return to him, she persuaded him to take her to a drug store to get something to quiet her nerves, and he released her and drove her to a drug store in Bernardsville. She entered, leaving the defendant outside, where he waited a while and then departed. In the drug store she saw the clerk. She immediately complained to him of the assault upon her, and requested him to call the police by telephone. The clerk gave her first aid treatment, and in response to the call the chief of police arrived quickly. She related to him, while still in a very nervous and highly hysterical condition, the attack made upon her by the defendant. Immediately the chief of police took her to the office of Dr. Voss in Bernardsville who examined her, and she related to him the fact that she had been attacked by the defendant. After the examination she was escorted by the chief and his wife to her home in Bloomfield, there being no local magistrate accessible that night. She complained to her sister of the attack upon her. She returned to Bernardsville the next morning of her own volition and made formal complaint against the defendant for rape. Defendant was brought before the magistrate. A hearing was subsequently had which resulted in an indictment by the grand jury and the conviction now under review.
Several witnesses testified as to the physical condition and appearance of the prosecutrix immediately, or within an hour or two after the attack. All agreed that she was crying, very nervous, shaking, trembling all over and bordering on hysteria. There was a scratch on her cheek, her lower lip was cut and bleeding, was quite swollen and puffed up and protruding
considerably beyond the upper lip. Her stockings were torn, her hat was torn, and her clothing was generally disheveled and muddy. Dr. Voss testified that there was a bruise on the inner side of her right thigh; the external vaginal tract was markedly irritated and red, and internally there was "a spot of blood where the hymen should have been;" that "there was a marked spasm of the muscles of the genitalia and that she was cold and did not appear very strong and had practically to be supported."
At the close of the state's case defendant moved to strike out the count for rape, which motion was properly denied, and the case proceeded and was submitted to the jury.
We have examined with care the defendant's own testimony, together with that of the witnesses called by him, including the medical testimony. The defendant testified in effect that she had consented, and suggested that the sexual intercourse was not complete; but a reading of his own testimony, which contained damaging admissions, and the other testimony produced by him, results in the conclusion that the testimony of the prosecutrix respecting all of the essentials of rape was true -- at least so the jury ...