On error to the Supreme Court.
For the plaintiffs in error, Aaron Van Poznak.
For the state, William A. Wachenfeld, Prosecutor of the Pleas; Donal C. Fox, First Assistant Prosecutor, and C. William Caruso, Special Assistant.
The opinion of the court was delivered by
HEHER, J. The basic question here is the sufficiency vel non of the evidence to sustain the conviction of plaintiffs in
error, in the Essex Special Sessions, upon an indictment charging that on August 30th, 1942, they "were in private guilty of an act of lewdness with one another, grossly scandalous and tending to debauch the morals and the manners of the people and [of] indulging in certain other acts and practices so obscene and indecent that a minute description of the same would be offensive to the court and improper to be placed on the record thereof, wherefore a fuller description of the same is not set forth herein, * * *."
The Supreme Court affirmed the judgment; and the accused thereupon sued out a writ of error from this court. The entire record of the proceedings had upon the trial was returned with the writ of error issued out of the Supreme Court, pursuant to R.S. 2:195-16.
It is assigned for error, among others, that the sessions judge, at the close of the case, denied a motion for a judgment of acquittal for lack of evidence, and also that the "verdict" was against the weight of the evidence under R.S. 2:195-19. The appellants must prevail.
The evidence reasonably tended to show only that the accused were guilty of fornication. It was proved that on August 29th, 1942, at about 11:30 P.M., they entered Brenner's three-room suite in an apartment house in East Orange. At approximately 3 A.M. on the following morning, Brenner's wife, her nephew, James J. Thomas, Jr., the latter's wife, Mary, his father, James J., Sr., and a police officer entered the darkened apartment (with the aid of a flashlight) via the fire escape and a window raised by one of them (there was then but one "small light" in the living room, into which the window opened), and found Brenner in the hallway at the bedroom door, "struggling to get on a pair of pajamas," and Canderliere lying in bed under a cover, clothed in a nightdress. Mrs. Brenner drew the cover from her. There was testimony also as to observations purportedly made by Mrs. Brenner and her kinsfolk from the roof of a building nearby, one-half hour after the accused had entered Brenner's apartment. Thomas, Jr., said that he saw the accused "undress and go to bed." We have no means of knowing whether the sessions judge credited this particular
piece of evidence. If he did, his finding in this regard was contrary to the great weight of the evidence. Without suggesting that what was thus related is of itself determinative of the issue, we are clear it was purely imaginative. The witness admitted that his view of the apartment was from an elevated position some sixty-five or seventy feet away, and that the bedroom window shades were half-way down. Although there were no lights in the bedroom, and there was a hall between the bathroom and the bedroom, he insisted the "reflection" of a light in the bathroom gave him "a very good view of the bedroom." But Mrs. Brenner testified that, while she saw Canderliere in the bedroom attired in a nightgown, she did not see her husband at all. She did say, however, that she left the roof to procure cigarettes for her nephew, and did not resume observations upon her return. Mary Thomas merely said that she saw the accused "walking around in the room, and after a while the light went off." Later, she admitted that she "couldn't see simply because" her father-in-law and her husband "were really taking up the room;" she "had just a glimpse." Thomas, Sr., did not take the witness stand; it was explained that he was suffering from a "heart ailment," but there was no showing that he was thereby incapacitated as a witness.
Neither adultery nor fornication, committed in secret and not constituting cohabitation publicly indecent in the manner of the association, is lewdness within the intendment of our law. Originally, the Crimes Act condemned only "open lewdness, or any notorious act of public indecency, grossly scandalous, and tending to debauch the morals and manners of the people." Pamph. L. 1898, pp. 794, 808; Comp. Stat. 1910, p. 1762. This was merely declaratory of the common law. In that system, "lewdness" signifies open and public indecency and is punishable as a common nuisance, injurious to public morals; and it is therefore essential that the lewd act be committed in a public place, and be seen by persons lawfully in that place. Private or secret indecency ...