On error to the Passaic Quarter Sessions.
For the defendant in error, Arthur C. Dunn, prosecutor of the pleas; Peter J. McGinnis, first assistant prosecutor.
For the plaintiff in error, Charles W. Chadwick and Anthony A. Calendra.
Before Brogan, Chief Justice, and Justices Donges and Porter.
BROGAN, CHIEF JUSTICE. This case comes before us on writ of error to the Passaic County Court of Quarter Sessions. The plaintiff in error stands convicted of rape. The date on which the crime was committed was May 9th, 1935, the place, the city of Paterson. The proofs indicate that the plaintiff in error enticed one Helen McClaren into his automobile in the city of Newark, ostensibly for the purpose of taking her to Montclair, Essex county, where she lived as a domestic servant and that the crime was committed in the car. Trial on this indictment was not moved until January 19th, 1939, for the apparent reason that shortly after the commission of the offense Miss McClaren, twenty-two years of age at the time, became insane and has been, since June 10th, 1935, confined in the Greystone Park Hospital for the Insane.
There was testimony from which the jury might reasonably have inferred that her mental instability and collapse resulted from her experiences of May 9th. The testimony shows that immediately after this outrageous assault upon her she reported the facts to the lady in whose employ she was, as a result of which Miss McClaren finally went to the headquarters of the police department in Paterson. There she made
a criminal complaint. The plaintiff in error was at once arrested and confronted by the girl. At that time, and on the trial of this indictment, Sorge unhesitatingly admitted having had sexual intercourse with the girl and claimed that she had consented thereto. Throughout the record the testimony of various witnesses is to the effect that statements were made to them by Miss McClaren that she had been attacked and ravished; that she had been beaten and maltreated generally, and all this without objection on the part of the plaintiff in error. The identification of Sorge by Miss McClaren is not open to question. There was plenary evidence to support the conclusion that she had been maltreated, being bruised and scratched about the head, face and body. An examination by a physician made the following day indicated that her sexual organs had been bruised and ruptured within forty-eight hours prior to the time he made his examination.
The plaintiff in error in a written statement voluntarily made, which was put in evidence without objection, admitted the sexual intercourse but denied that the same was contrary to her will. His testimony at the trial was to the same effect. The sharp issue then is whether she had expressly or tacitly consented thereto.
The crime of rape consists in having unlawful carnal knowledge of a woman without her free and conscious consent.
On May 14th, 1935, her statement was written down by members of the police department at Paterson headquarters. The defendant, Sorge, was called in and asked if he had any relations with Miss McClaren. He said he had. When he was told that he was charged or would be charged with the crime of rape he said, apparently to her, "And you were willing." At that point she jumped from her chair and said, "If I was willing then why did you choke me?" This testimony describing what happened at police headquarters was given by Mr. Miller, the father of the girl's employer. There was no objection to it.
The main assignment of error concerns the testimony of Charles Pirola, a sergeant of police. He testified that he brought Sorge to Paterson from Bloomfield police headquarters where he ...