On appeal from the Atlantic County Court of Quarter Sessions.
For the State of New Jersey, Lewis P. Scott, Prosecutor of the Pleas, and David R. Brone.
For the defendants-appellants, Coulomb, McAllister & Hunter (Harry R. Coulomb).
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. These are appeals under chapter 187, Pamph. L. 1946, allocated as R.S. 2:195A-1, et seq., from judgments of conviction after a jury trial in the Atlantic County Court of Quarter Sessions. There were separate indictments against each of the defendants. The Wesler indictment charged the defendant with rape, carnal knowledge and carnal abuse of one Dorothy Stewart, and the Tomash indictment charged the defendant with like offenses against one Ethel Lawrence. The indictments were tried together, and the appeals are argued together with but one state of case and one appellants' brief. The prosecutor in each instance abandoned the count for rape, and the convictions were for carnal knowledge and carnal abuse.
The appellants present as their point one that the verdicts are against the weight of the evidence and are the result of mistake, passion and prejudice. The statutory authority is in R.S. 2:195A-9:
"The appellant in any criminal case may assign as a ground of appeal that the verdict was against the weight of evidence, whether or not any motion to acquit has been made; and, if it shall appear from a consideration of the entire evidence that the verdict was against the weight of the evidence, the appellate court shall reverse the verdict and order a new trial."
That wording is taken almost verbatim, in so far as the pertinent part of it is concerned, from R.S. 2:195-19, and the effect, we conclude, is to be the same. "To set aside a verdict as against the weight of the evidence that fact must [137 NJL Page 313] be so clear as to give rise to the inference that the verdict was the result of mistake, passion, prejudice or partiality (citing cases). * * * The test under R.S. 2:195-19 * * * is not whether our minds, as reviewing judges, are also satisfied beyond a reasonable doubt of the guilt of the accused. The test is whether the jury whose exclusive function it is to determine whether the guilt of the accused has been established beyond a reasonable doubt committed an 'injustice' as the result of a 'plain and obvious failure' to function within its allotted sphere." State v. Monia, 132 N.J.L. 91, and cases there cited. The argument is that the two girls, escaped inmates of a Correction Institution for Wayward Girls at Allentown, Pennsylvania, are psychopaths and immoral and because of those characteristics are not to be believed, and, further, that inasmuch as there would not be sufficient evidence upon which to convict without their testimony, we should find that the convictions were against the weight of the believable evidence and should be reversed. The argument calls attention to certain alleged discrepancies and inconsistencies in the testimony but rests largely upon the testimony of two psychiatrists, Dr. William Drayton, Jr., and Dr. Max Rossman, that both girls are psychopaths and immoral and that psychopaths are prone to be untruthful. That testimony and all the other proofs were before the jury whose function it was to sift truth from falsehood and who, under the charge of the court, undertook to perform that function and who reached a verdict that we are not prepared to hold, considering the entire evidence, is against the weight of the evidence as above defined. There are respects in which the girls were clearly telling the truth. We are unable to say that because of the record and the characters of these young women their testimony is to be utterly rejected regarding the acts upon which the defendants were convicted any more than we are able to say that the defendants themselves, because of some doubtful attributes, were not to be believed. Tomash admits to an earlier conviction for crime and to having served a term in state's prison because of it. He claims to be in the general contracting business, but he has no office other than the room where he lives. His place of residence consists of one
room in which is a kitchenette and a pull-down bed, together with a bathroom, where he says he kept a colored maid who was there much of the time when the girls were present, but he does not produce the maid as a witness. He called one Mary Kurtz, a former employee, apparently as a character witness concerning his attitude towards one who had worked in the apartment. There was this testimony on direct examination:
"Q. Did he ever make any suggestions to you of any kind? A. Well, I ...