On appeal from the Union County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher, Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J.
The principal issue in this appeal is whether, on the record before us, it "clearly and convincingly appears" that the verdict of "guilty" returned by the jury was so contrary to the weight of the evidence as to be "the result of mistake, partiality, prejudice or passion." See R.R. 1:5-1(a).
The indictment charges that on January 30, 1953 in Westfield, Union County, the defendant had carnal knowledge of the complaining witness forcibly and against her will. From the judgment of conviction the defendant appealed directly to this court, we having granted certification in advance in view of the relationship between the instant case and State v. Landeros, 20 N.J. 69 (decided November 21, 1955).
The complaining witness at the time of the attack was a girl 19 years of age and 21 at the time of trial. The rape itself was established by her uncontradicted testimony, corroborated by a physician who examined her shortly thereafter.
The guilt or innocence in this case, as it so often does in this classification, hinges almost solely on the identification of the defendant as the perpetrator of the crime.
The following is a synopsis of the testimony for the State and the defense.
The complaining witness testified that at approximately 10:15 P.M. on the evening of January 30, 1953 she, unaccompanied, left a soda parlor and was walking on Broad Street, Westfield, in the direction of her home. She observed a colored man approaching, about 5 feet 8 in height, wearing
a "bee-bop" hat, a short, close-fitting jacket and light pants. He was wearing old shoes and the collar of his jacket had markings across the front.
As she passed him she became "kind of frightened" and started to go off the sidewalk. He walked past but whirled around, grabbed her, placing his hand over her face, and dragged her about 100 feet into a vacant lot. He demanded money of her and after she gave him what money she had, he then proceeded to commit the rape. The lurid details will be omitted.
She had an opportunity to observe her assailant's face when he was perpetrating the crime and noticed he had a mustache. She observed his hand and noticed he was wearing a double-banded wedding ring. At the trial she unhesitatingly and definitely identified the defendant as the man who had committed the attack.
On cross-examination it developed she had seen the defendant on two occasions after the attack, the first on February 3, 1953 -- four days later -- when she was taken by Westfield police to Belle Mead, where the defendant was employed. There she failed to identify him as her assailant. She was unable to recall the details of that confrontation but acknowledged she had felt his hands and observed he wore a wedding ring.
Concededly, her testimony as to the Belle Mead incident was vacillating and uncertain and undoubtedly affected her credibility in so far as her identification of the defendant was concerned. Thus, she testified that at Belle Mead she had recognized the defendant's voice as that of her attacker and had communicated this fact to the police officers who accompanied her. Subsequently she reversed herself in this respect and said she had not given any indication to the police officers that she could identify the defendant but attempted to say she had communicated this information to a friend, which testimony was, of course, stricken.
She next saw the defendant on March 9, 1953 at the police station in Rahway. He had been taken into custody the day before in connection ...