Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Edward Hintenberger, after trial without a jury, was convicted on two counts of an indictment which charged, in one count, that on September 7, 1954 he committed open lewdness in that he indecently exposed himself to one Jane, aged nine years, contrary to the provisions of N.J.S. 2 A:115-1, and, in the second count, that on the same day he induced Jane "to submit to an act tending to impair the morals of the said child" by "hugging and petting" her, contrary to the provisions of N.J.S. 2 A:96-3.
At the trial Jane testified that she was in the defendant's home playing with his daughter and that he motioned her into his bedroom, asked her to close the door and then hugged and kissed her and indecently exposed himself to her. She testified further that shortly thereafter she reported
to her mother what had occurred and, at the same time, told her of an incident which had occurred in the defendant's car at a drive-in theater in August of the same year. Over objection, she continued to testify to the details of the August incident. Following Jane's testimony, her mother testified that Jane had complained to her about both incidents at the same time. With regard to the September incident, she stated that Jane said: "that something had happened and she told me the exact things she said here in court today." Counsel promptly objected to this latter testimony and asked that it be stricken, but the trial court made no ruling on the objection.
On this appeal the accused asserts the following grounds for reversal: (1) that there was error in admitting the mother's testimony that Jane complained to her of the September incident and in permitting the mother to testify as to details; (2) the same as to the August incident; (3) that the second count of the indictment does not charge a crime; and (4) that the findings of fact of the trial court are insufficient.
Before discussing the specific grounds of appeal, we will first dispose of a procedural question raised by the State, namely, that the defendant's appeal is untimely. The defendant was found guilty on February 7, 1956 and sentenced on March 2, 1956. It is argued by the State that since the defendant's notice of appeal bears a date more than three months after February 7, it does not comply with R.R. 1:3-1(a) which provides that appeals in criminal causes shall be taken within three months of "final judgment." This contention is not well taken. In the absence of a final order or judgment entered subsequent to sentencing, in criminal cases "final judgment" is always deemed to be the "sentencing" rather than the "conviction" of the criminal. The sentence is the judgment. State v. Snover , 2 N.J. Misc. 1153 (Sup. Ct. 1924), affirmed 101 N.J.L. 543 (E. & A. 1925). See State v. Janiec , 6 N.J. 608 (1951); Commonwealth ex rel. Holly v. Ashe , 368 Pa. 211, 82 A. 2 d 244 (Sup Ct. 1951). Moreover, the Supreme
Court has recently stated that no defendant in a criminal case should be prejudiced by having his appeal dismissed when the rule in reference to his appeal might possibly be the subject of conflicting interpretations. State v. Petrolia , 21 N.J. 453, 458 (1956).
We now consider the question of the admissibility of the mother's testimony regarding the September incident. It has long been the rule that in rape cases the prosecution may prove that the violated female complained, with reasonable promptness, to persons to whom she might be expected to turn for sympathy, protection or advice. At an early date, the rule was extended to cases of attempted rape, State v. Ivins , 36 N.J.L. 233 (Sup. Ct. 1873); State v. Spallone , 97 N.J.L. 221 (E. & A. 1921); thereafter, to assault with intent to carnally abuse a 12-year-old child, State v. Langley , 6 N.J. Misc. 965 (Sup. Ct. 1928); State v. Saccone , 7 N.J. Super. 263 (App. Div. 1950); and, recently, in a comprehensive review of the rule, to impairing the morals of a child by fondling her private parts, State v. Gambutti , 36 N.J. Super. 219 (App. Div. 1955). However, this rule was found to be inapplicable in a case involving open lewdness in a public park, State v. Griffin , 19 N.J. Super. 581 (App. Div. 1952).
The defendant argues that the rule admitting such evidence should not be extended to cover the circumstances of the instant case. He draws from the authorities the rationale that each case in which the rule has been invoked, involved an offense comprising contact with the sexual organs of the female. Accordingly, he urges that since here there was no such contact, the rule is inapposite. See State v. Rodesky , 86 N.J.L. 220, 223 (E. & A. 1914). We do not agree.
In considering the defendant's argument, this court is ever mindful of the gravity of sex offenses, but because conviction of such crimes carries with it so indelible a stigma, courts exert the utmost vigilance to protect the rights of the accused. And yet the future protection of those who might fall prey to an attack requires the ...