On error to Passaic County Court of Quarter Sessions.
For the defendant in error, Arthur C. Dunn, Prosecutor of the Pleas (Peter J. McGinnis, Assistant Prosecutor, of counsel).
For the plaintiff in error, David Cohn.
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff in error, convicted of rape at the Passaic Quarter Sessions, brings up the judgment for review by strict writ of error and also under the general review provided by our Criminal Procedure Act (R.S. 2:195-16) upon specification of causes for reversal.
It is first argued that the verdict was contrary to the weight of evidence. If the plaintiff in error would prevail in the argument made it must appear that the verdict is so clearly against the weight of evidence as to give rise to the inference that it was the result of mistake, passion, prejudice or partiality. In the examination of such point the court is obliged to consider the evidence supporting the verdict as though the matter was on rule to show cause and weigh it in all its fullness just as it was presented to the jury. State v. Morehouse, 97 N.J.L. 285; State v. Karpowitz, 98 Id. 546. The court's duty is the same in a criminal as in a civil case. There is no occasion to delineate or outline in detail the proofs in this case. The defense was a denial of the commission of the crime. The issue was credibility and veracity. The jury had before them a statement, signed by the defendant in the presence of four or five witnesses, admitting the commission of the crime and the accompanying details; proof that on arraignment in the Recorder's Court he pleaded "guilty;" and proof elicited on defendant's cross-examination, that he had been previously convicted of crime, here and elsewhere. In these circumstances the jury disbelieved the defendant's denial of guilt. We perceive no merit in the argument made for the plaintiff in error under this point.
It is next said the trial court committed error in its charge to the jury. The following statement of the court is challenged:
"Now notwithstanding the written and signed statement in the nature of a confession which is in evidence and which will be before you, and the defendant's plea of guilty upon arraignment in the Recorder's Court." This incomplete sentence is written down as one of the specifications of causes for reversal. The balance of the sentence is as follows: "and you have heard and will of course consider his [defendant's] own explanation with respect to both of these items -- the defense is an absolute denial. Defendant contends that this is a case of mistaken identity and that he is not the person who committed the alleged crime. These are things solely for your consideration and it is not necessary for me to comment further upon them because the finding of fact is solely for you * * *."
The argument of the plaintiff in error amounts to this: that the instruction quoted above "transcended" the court's right of comment on the evidence and was the equivalent to a direction to the jury that they find that the plaintiff in error had made a confession and that he had pleaded guilty upon his arraignment. The signed statement of the plaintiff in error, admitting the perpetration of the crime in all its detail, was received in evidence without objection; testimony that a plea of guilty had been made by him before the Recorder, on arraignment, was likewise received. But it is argued that the court's instruction to the jury on this element of the charge runs counter to the opinion of our court of last resort in the case of State v. Swan, 130 N.J.L. 372, and State v. Jefferson, 129 Id. 311. These authorities do not support the argument. What the learned trial judge said was not error in law. He merely directed the jury's attention to certain pertinent evidence and to the defendant's denial and explanation thereof and admonished the jury that these were matters solely for their consideration and finding. In this there was no error.
It is next argued that the trial judge abused his discretion in several particulars -- failure to charge the jury with reference to the crime of assault with intent to rape; or to commit an assault; or to commit an atrocious assault and battery, ...