Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The defendant was accused by the indictment of the Union County grand jury of the commission between February 28, 1955 and March 14, 1955 in the City of Elizabeth of the crime of sodomy with a male child under the age of 16 years in violation of N.J.S.A. 2 A:143-2. More definitely stated, the alleged offense in the present case was the indulgence by the defendant for sexual gratification in an act of carnal copulation against nature through the anus of a pupil of 13 years of age in the attic of the school of which the defendant was the janitor. Such a deed arouses so much human abhorrence and detestation that the evidence of its commission, the fairness of the defendant's trial, and the propriety of the judgment of conviction demand the most circumspect appellate consideration.
The record before us discloses that the defendant's conviction rested predominantly upon the testimony of the voluntary participant, Edward, and upon that of his companion, Robert, a boy of like age, both of whom were subjected at the trial to rigorous and exhaustive cross-examinations. Their combined narratives of the occurrence do not appear to be an extraordinary imaginative fantasy inspired by any malice toward the defendant. The boys were originally more disposed to retard rather than promote any incriminatory accusation against the defendant. The prosecution was inaugurated by the police authorities, and the supporting testimony of the boys appears to us to have carried the characteristics of truth and sincerity. There was also some competent supplementary evidence of a corroborative tendency. We refrain from rehearsing here the scandalous and demoralizing incidents embodied in the testimony adduced on behalf of the prosecution. In evaluating the truthfulness of the defendant's denials we cannot ignore his acknowledgment that he had been convicted of robbery in 1931 and again in 1934. A conclusion that the defendant's conviction was manifestly inconsistent with
the weight of the believable evidence and the product of emotional influences is not justified.
We then proceed to consider whether the defendant experienced a prejudicial deprivation of his substantial rights in the judicial management of his trial. Preliminarily we pause to remark that this is another appeal in which to a conspicuous degree a trial attorney for a defendant listens speculatively to the introduction of adverse testimony without the interposition of any objection, fully cross-examines the witness concerning the subject of the testimony, and then on appeal it is asserted on behalf of the defendant that the admission of the testimony was plainly erroneous. Other than in exceptional circumstances such an ingenious or adventurous practice will not avail the defendant on appeal. State v. Picciotti , 12 N.J. 205, 211 (1953); State v. Rhams , 14 N.J. 282, 290 (1954); R.R. 1:5-1; R.R. 2:5.
An exemplification of just such an endeavor is apparent in the present case in relation to the reception, without disapproval, of the testimony of Robert. But in this instance Robert testified that in response to the defendant's inquiry "You want to go upstairs and have some fun," he accompanied Edward and the defendant with a jar of vaseline to the attic where the defendant first endeavored unsuccessfully to have unnatural relations with him of the same pattern as those immediately thereafter pursued with Edward. This testimony was properly admitted in evidence. State v. Deliso , 75 N.J.L. 808, 816 (E. & A. 1908); State v. Ehlers , 98 N.J.L. 236, 246 (E. & A. 1922); State v. Boccadoro , 105 N.J.L. 352, 356 (E. & A. 1929); State v. McNamara , 116 N.J.L. 497, 499 (E. & A. 1936); State v. Roscus , 16 N.J. 415, 422 (1954). Here, assuredly, the testimony of Robert possessed the requisite elements of time, place, and circumstance in its attachment to the crime with which the defendant was charged, to render it legally admissible.
In the pursuit of their investigations the police searched the attic and basement of the school. In the attic one or more mattresses and the top of a vaseline jar were
found. In the defendant's workshop in the basement a quantity of toy whistles for children and some prophylactics were discovered. When interviewed by the police the boys, Robert and Edward, had imparted the information that before their visit to the attic the defendant had given each of them in jelly glasses some wine from a bottle bearing the label "Gold Medal." An empty wine bottle having a like label was detected in a cardboard trash container in the boiler room of the basement.
All of those articles upon presentation by the State were admitted in evidence as exhibits, also without objection. The defendant chose rather to explain that he acquired the whistles to give to children; that the prophylactics were already in the workshop at the inception of his employment, and that he rarely indulges in wine or other alcoholic beverages. At the conclusion of his instruction the trial judge stated in the presence of the jury: "The State does not allege that the prophylactics or the whistles were used in this crime. Therefore, I strike them out and instruct the jury to pay no attention to them. * * * They are not to be taken to the jury room." Counsel for the defendant had by his cross-examination materially demolished the evidential significance of the finding of the empty wine bottle in the trash box available to the use of others than the defendant, and made no application to the court that the bottle too be excluded from the jury's consideration. The admission of the prophylactics, whistles, and wine bottle might have been denied by the court had objection to their reception in evidence been interposed. Reversible error is not discernible in those features of the trial.
Our determination of some of the several subjects specified as reasons for the nullification of the conviction can be adequately communicated in a summary manner. For examples, the boys incidentally explained that it was the threatening precipitation of rain that caused them to discontinue their basketball game and enter the basement quarters of the defendant on the ...