McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
Defendant, Henry Saccone, appeals from a judgment of conviction in the Essex County Court, upon an indictment, charging that on May 2, 1948, at Cedar Grove, he committed (1) assault and battery upon and (2) carnally abused a woman child of the age of fourteen years.
For the purpose of determining the issue here, a condensed version of the facts will suffice. On May 2, 1948, defendant persuaded the prosecutrix, previously unknown to him, to get into his automobile; he then drove her to a place on a lonely road, here he stopped; then, by the threat of the use of a gun, which she did not see, made her get on the back seat, raised her clothes and attempted against her will to have intercourse with her; prosecutrix at the time was experiencing a menstrual period. He then drove her to a transportation line, giving her money to get home. Upon her arrival home, she immediately told her mother what had occurred. She was then taken to a hospital where she was examined by a medical doctor, who found no marks indicating violence on any part of her body. Later, the defendant was apprehended, indicted, tried and convicted. Prosecutrix' mother, over objection, was permitted to testify to the details of the offense as related to her by her daughter. Defendant did not take the stand nor offer any witnesses in his own defense.
Defendant urges that the trial court committed reversible error in (1) permitting prosecutrix' mother, over objection, to testify to the details of the alleged criminal act and the instruction given by the court to the jury with respect thereto,
and (2) in refusing to instruct the jury that they could consider the count of the indictment charging assault and battery.
The rule is well settled that in trials for rape the prosecutrix may testify that she made a complaint soon after the occurrence. State v. Ivins , 36 N.J.L. 233 (Sup. Ct. 1873); State v. Huggins , 83 N.J.L. 43 (Sup. Ct. 1912); affirmed, 84 N.J.L. 254 (E. & A. 1913). The rule admitting evidence of the complaint is based on the well known fact that when an outrage has been committed on a woman, the instincts of her nature prompt her to make her wrongs known, and to seek sympathy and assistance. The complaint she then makes is the natural expression of her feelings. The courts throughout the country are divided, however, upon the question of the admissibility of the whole story told by the prosecutrix. The rule supported by the weight of the authority is that the prosecutrix may testify merely to the fact of making a complaint, but not as to the details. In applying this rule, it has been held that while the witness should not be permitted to tell the particulars of the complaint, enough may be given in evidence to show the nature of the complaint, even though it involves to some extent the particulars thereof, and that the rule is not violated by evidence as to the time and place where the complaint was made, the circumstances under which it was made, and the person to whom made, the condition of the victim when making the complaint, the conduct of the prosecutrix at the time she made complaint, and that she exhibited, if such was the fact, marks of violence and other like indications, as confirmatory of her testimony. 44 Am. Jur., Title "Rape ," § 84, pp. 953 and 954. Wigmore on Evidence, Vol. IV , 3 rd Ed. , § 1131, p. 215, states: "The broad rule obtains in a few Courts that consistent statements may be admitted after impeachment of any sort, -- in particular after any impeachment by cross-examination. But there is no reason for such a loose rule." Section 1138, Wigmore, supra , at p. 228, states: "According to the general theory of Corroboration by Similar Statements, there must be some kind of impeachment before the other statement can be offered."
In Lenz v. Public Service Railway Co. , 98 N.J.L. 849, 851 (E. & A. 1923), impeachment is defined as an attack upon a witness' general reputation for truth and veracity. This definition was cited with approval in State v. Lerman , 107 N.J.L. 77, 81 (E. & A. 1930), wherein Chancellor Walker, speaking for the court, stated:
"* * * The Court of Errors and Appeals in Lenz v. Public Service Railway Co. , 98 N.J.L. 849, held that impeachment is an attack upon a witness' general reputation for truth and veracity, and is not, strictly speaking, the effect which is produced upon the credibility of his testimony by proof of contradictory statements made by him upon a matter in issue or relevant thereto.
"In the case at bar there was no attack upon the witness' general reputation for truth and veracity, but only a contradiction of his statement, and that was not impeaching, but contradicting the witness. * * *"
The State relies upon the case of State v. Orlando , 119 N.J.L. 175 (Sup. Ct. 1937), for the admissibility of the details of the complaint. Mr. Justice Trenchard, speaking for the court in the Orlando case carefully reviewed the prior applicable decisions, and stated: "* * * And when, as here, she has been impeached on her own cross-examination, it is proper to offer such rehabilitating testimony in the state's case in chief -- even though it might preferably be offered in rebuttal;" and further that "Under this rule, which seems sensible and fair, and not out of harmony with our New Jersey cases, the testimony in question was admissible." The New Jersey cases discussed by Mr. Justice Trenchard were: State v. Ivins, supra; State v. Langley , 6 N.J. Misc. 965 (Sup. Ct. 1928); State v. Huggins, supra; State v. Shupe , 86 N.J.L. 410 (Sup. Ct. 1914); State v. Rodesky , 86 N.J.L. 220 (E. & A. 1914); State v. Schaeffer , 87 N.J.L. 663 (E. & A. 1915); State v. Spallone , 97 N.J.L. 221 (E. & A. 1922); State v. Ippolito , 10 N.J. Misc. 1096 (Sup. Ct. 1932). He distinguished these cases from the Orlando case by pointing to the fact that in the cited cases there had been no impeachment of the prosecutrix' credibility to justify the admission of the details of the complaint or that there was [7 NJSuper Page 268] no indication that the testimony had been offered to rehabilitate her credibility, or the question of the admissibility of the details had not been discussed nor considered. State v. Orlando held further: "The theory upon which such details are admitted is that where the testimony of the complaining witness has been impeached, her credibility may be restored or rehabilitated by showing that she told the same story at the time of making complaint. 2 Wigmore on Evidence (2 d Ed.), § 1137 B, and cases cited," and "* * * The fact that testimony offered to rehabilitate the credibility of the prosecutrix incidentally acts as corroboration of her story, is no reason for excluding it. But before such testimony can be used to rehabilitate the credibility of the complaining witness, two elements must appear , (1) that she has testified, and (2) that she was impeached. 2 Wigmore on Evidence (2 d Ed.), § 1138, and cases cited." (Italics ours.) That there was an impeachment of the prosecutrix' testimony in the Orlando case is quite clear. However, in the case sub judice , a careful scrutiny of her cross-examination reveals that at the conclusion thereof, the prosecutrix' credibility had not been impeached in any respect. She was permitted, without objection, to testify in her direct examination that she had made the complaint to her mother of defendant's attack. The cross-examination reveals that it consisted almost entirely of a repetition of her direct testimony as to the occurrence and her ...