Conford, Davidson and Tomasulo. The opinion of the court was delivered by Conford, S.j.a.d. (temporarily assigned).
[42 NJSuper Page 33] This is an appeal from a dismissal by the Essex County Court of
a writ of habeas corpus. In November 1948 the defendant filed pleas of non vult to two indictments charging him, respectively, with rape and assault with intent to rape. The sentences imposed were from 10 to 12 years on each indictment, to run consecutively. The intent indictment referred to prosecutrix, D.S., and the rape indictment referred to prosecutrix, H.G. Each indictment included a second count charging assault and battery on the same individual. The defendant had also been indicted at the same time for atrocious assault and battery, and for robbery, in two separate indictments. These were nolle prossed after pleas of non vult were entered on the indictments sub judice.
An opinion was filed by Judge Foley in support of his order dismissing the writ after hearing. The appellant raises two grounds of appeal: (1) the indictment and its underlying statute are invalid in that the defendant was not adequately informed of the "nature and cause of the offense charged," and (2) the manner in which his pleas of non vult were accepted violated his right to due process. We consider the contentions in that order.
The first argument is in two phases. The first is that the rape indictment made no reference to the age of the prosecutrix and that defendant was therefore unable to tell which of the three types of offense penalized by the then effective statute, R.S. 2:163-1 (now N.J.S. 2 A:138-1), he was charged with. The statute read as follows:
"Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person to commit such offense, or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor * * *; or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child over the age of twelve years and under the age of sixteen years, with or without her consent, shall be guilty of a high misdemeanor * * *."
The indictment in question reads, so far as material, as follows:
"The Grand Jurors of the State of New Jersey, for the County of Essex, upon their oath present that Frederick A. Faas, on the 15th day of June, 1948, at the Township of Caldwell, in the County of Essex aforesaid and within the jurisdiction of this Court, did have carnal knowledge of [H.G.] forcibly against her will, contrary to the provisions of R.S. 2:163-1, against the peace of this State, the government and dignity of the same."
The three offenses encompassed by the statute have been succinctly summarized as follows: "(1) rape, (2) carnal abuse of a woman-child under the age of 12 years, and (3) carnal abuse of a woman-child over the age of 12 years and under the age of 16." State v. Lefante , 12 N.J. 505, 513 (1953). The penalty for (2) is greater than for (3). It will be perceived that the indictment uses, verbatim , the language of that portion of the statute dealing with "rape" and it would seem from that fact and from the absence of any reference to the age of the female that defendant is unmistakably apprised that he is charged with rape and not with carnal abuse of either category specified in the statute.
In normal usage rape, or forcible carnal knowledge, is entirely distinct from carnal abuse, the first involving actual sexual penetration, and the second being, as stated in State v. Huggins , 84 N.J.L. 254, 259 (E. & A. 1913), "an act of debauchery of the female sexual organs by those of the male which does not amount to penetration."
In State v. Tilton , 104 N.J.L. 268, 271 (Sup. Ct. 1928), the court said that "where the indictment charges a statutory crime, the general rule is that the offense may be charged either in the words of the statute or there may be such a particular statement of facts as will bring the accused within its operation." Defendant makes the point that it was stated in the Tilton case, supra , that the words, "carnal knowledge," include within their meaning, "carnally ...