On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
This is an appeal of right, by reason of a dissenting opinion, from a judgment of the Appellate Division affirming the conviction of the defendant on a criminal indictment charging him with assault with intent to commit rape, atrocious assault and battery and assault and battery, all charges emanating from the same incident. 32 N.J. Super. 168 (App. Div. 1954).
The jury, in the court's charge, was permitted to find and did find the defendant guilty on all counts of the indictment and he was accordingly sentenced on all three counts, the sentences to run concurrently.
The Appellate Division unanimously reversed the conviction and sentences on the atrocious assault and battery and simple assault and battery counts, holding these were but lesser offenses and were therefore included within the conviction on the more serious charge, assault with intent to commit rape.
The defendant appeals and before us contends there was illegal evidence admitted in the case which produced an unjust and unconscionable result and in fact constituted failure of substantial justice.
It is urged evidence was erroneously admitted showing (1) that the complaining witness had previously identified
the defendant; (2) that the defendant had been previously arrested; (3) that the previous arrest was for attempted rape while actually it was merely for assault; (4) that the police captain was convinced and was permitted to testify as to his opinion of the defendant's guilt.
The defendant specifically refers to testimony revealing the complaining witness' identification of him at the police line-up, theorizing that it "corroborated" her subsequent trial identification and was injurious because it additionally revealed the defendant was in jail at the time.
The defendant insists also that added to the improper emphasis thus laid upon the testimony of the complaining witness, her testimony was further inflated by the evidence emanating from Burns, a deputy warden of the Union County Jail, and Colacci, police captain of Bound Brook, in reference to the same incident, and it is contended the prosecution was compounding the error which had been made by calling these witnesses to corroborate the testimony of the complaining witness as to prior identification.
Evidence bolstering a witness' testimony consisting of previously made consistent statements is not admissible to corroborate. State v. Griffin, 19 N.J. Super. 581 (App. Div. 1952); People v. Jung Hing, 212 N.Y. 393, 106 N.E. 105 (Ct. App. 1914); 4 Wigmore, Evidence, § 1124.
Arrest without more does not in law, any more than in reason, impeach the integrity or impair the credibility of a witness. Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. ...