Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.
The defendant, Griffin, was convicted in the County Court of open lewdness and now appeals.
The offense took place on October 7, 1950, around 11:15 p.m., in a small public park in Paterson, New Jersey. This park is substantially triangular in shape, the apex being formed by two streets, North Main and East Main Streets, which intersect at an acute angle. Paved walks run through it, adjacent to which are placed benches for use by members of the public. There are no lights of any kind in the park. Photographs received in evidence show two street lights, about opposite each other, one on each of the intersecting streets and separated by the short distance of the rounded apex of the triangle. These lights are suspended from rather long metal arms attached to ordinary electric light poles and they project over and into the streets and away from the park. There are no other lights along the sides or the base of the park.
The two principal witnesses for the State were a young girl 12 years of age, a student in a special class for retarded children, and her brother, who was 11 years old at the time.
These children lived nearby and apparently were known to the police officer who patrolled the area. Previous to this incident he had told them if they ever saw a colored man in the park at night to call the police.
On the night in question they had been to the moving pictures and thereafter had gone to a diner for something to eat. On the way home at about 11:15, they intended to walk through the park. The evidence is conflicting as to whether they actually did so. The girl said first that they did not, but stopped on the sidewalk because they saw the defendant sitting in there on a bench. Later she said they had taken three or four steps into the park. However, the boy said they had gone about ten steps into it and were by a bush when they saw the defendant.
It was dark there. There were trees and bushes along and nearby the walk. One tree was located in back of the bench on which the defendant was sitting, the fairly low, leaf-covered branches of which extended out over the bench, and, according to the photographs, across the paved walk, within a foot or so of which the bench was placed. The girl said some light was reflected into the park from the window of a tavern located across the street. However, it seems obvious from the record that this could not have been very substantial.
The bench occupied by the defendant was identified by the boy as the first or nearest one to the point of their entrance. According to a defense witness, who made measurements, the bench was 48 feet from that point. The boy's companion did not specifically say which one it was of the three located on the same side and along the curve of the walk.
In any event, when the children saw the defendant they both observed that he had his trousers open, his private exposed, and that he was engaging in self-flagellation. The girl said they were about ten feet away from him at the time; her companion merely said that they were "by a bush." On seeing this the boy went into a nearby tavern and informed the bartender, who called the police.
The police officer, who answered the call, went into the park and found the defendant sitting on the middle bench located about 50 feet from the North Main Street entrance referred to. The defense witness who made measurements said this distance was 68 feet. When he got up to the bench he noticed that Griffin's trousers were open. Defendant was then taken to the patrol car where shortly thereafter the young girl identified him and related what had occurred.
Crucial points in the trial were the distance the children were from the defendant when they saw him sitting on the bench and their ability to observe what they said he was doing. The defense witness, who furnished the evidence of distances, had made the measurements on the evening of the first day of the trial and after the witnesses for the prosecution had testified. In rebuttal the prosecutor recalled the arresting officer. It then developed that after the defendant had been taken to police headquarters, this officer remained at the scene with the children and made a certain measurement. He was asked what took place between him and the children after the defendant had been taken away. When an objection was interposed on the ground that this was out of the defendant's presence, the court indicated that he would allow it for the purpose of "refuting the distance." Then the court asked whether the officer had measured the distance from the place where the ...