On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J. Jacobs and Weintraub, JJ., concurring in result.
The appellant was indicted by the Union County grand jury for the crime of sodomy involving a male child under the age of 16 years. N.J.S. 2 A:143-2.
His conviction was sustained by the Appellate Division. On petition, we granted certification. 23 N.J. 303.
The sordid details involved need not be further narrated except as required for the disposal of the various issues presented. We note with approval the meticulous consideration given the matter by the Appellate Division because the revolting nature of the crime ordinarily has a tendency to prejudice a defendant in his quest for justice. The circumstances likewise direct us to be scrupulously fair in determining whether any fundamental rights have been violated.
The appellant contends the trial court committed prejudicial error in admitting testimony as to an extraneous crime; in admitting prophylactics, toy whistles and a wine bottle into evidence; in refusing to permit defendant's counsel to read to the jury pertinent parts of exhibits in evidence; and in refusing to permit the defendant to testify as to his marital and familial status. It is also insisted that the remarks of the prosecutor in his summation impaired the defendant's substantial rights, and that the verdict was the result of mistake, as shown by markings on exhibits returned by the jury after their verdict, and was against the weight of the evidence.
These various points, we are satisfied, are submitted primarily to bolster the appellant's principal contention, which is that the trial court committed prejudicial error in refusing to permit the appellant's psychiatric witness to give an expert opinion, predicated in part on an examination of the appellant while under the influence of sodium pentothal, the so-called "truth serum," to the effect that the defendant was not a sexual deviate and had no inherent traits of perversion.
The indictment under consideration charged the appellant with an act of sodomy committed upon Robert.
At the trial Robert testified that immediately prior to the commission of the offense one Edward was present in the attic of the school where it allegedly took place and that Edward received like treatment from the appellant. Edward then testified to the acts committed upon him, although he was not named in the indictment on trial but in a separate instrument.
The appellant alleges error, contending that on the trial of a person for one crime, evidence that he was guilty of other crimes, even of a like nature, is irrelevant and inadmissible. E.g., State v. DePaola, 5 N.J. 1 (1950); State v. Julius, 3 N.J. Misc. 202 (Sup. Ct. 1925); State v. Fisher, 96 N.J.L. 5 (Sup. Ct. 1921); State v. Bloom, 89 N.J.L. 418 (Sup. Ct. 1916); State v. Raymond, 53 N.J.L. 260 (Sup. Ct. 1891). Cf. State v. Bartell, 15 N.J. Super. 450 (App. Div. 1951), affirmed 10 N.J. 9 (1952).
The reasoning based on the cases cited, however, overlooks the fact that a defendant's declarations and acts are admissible when they are part of the res gestae. Cf. State v. Stephan, 118 N.J.L. 592 (E. & A. 1937); Hunter v. State, 40 N.J.L. 495 (E. & A. 1878).
When the evidence of another crime tends to prove logically against the defendant some element of the crime for which he was tried, cf. State v. DePaola, supra, or where the evidence of another crime tends to show malice, ill will or intent on the part of the actor, State v. Donahue, 2 N.J. 381 (1949), or where a common scheme or plan embodies the commission of two or more crimes so related that proof of one tends to establish the other, State v. Noel, 102 N.J.L. 659 (E. & A. 1926); State v. DePaola, supra; State v. Donahue, supra, it becomes admissible.
It is equally well settled that where the commission of a former crime evinces a state of mind that is carried
forward and is shown to exist at the time of the commission of the crime charged, and the former crime is so related to the crime charged as to time, place and circumstances that the state of mind may be said to be continuous, evidence of the former crime is admissible. State v. Roscus, 16 N.J. 415 (1954); State v. McNamara, 116 N.J.L. 497 (E. & A. 1935), certiorari denied 299 U.S. 568, 57 S. Ct. 32, 81 L. Ed. 419 (1936); State v. Ehlers, 98 N.J.L. 236 (E. & A. 1922); State v. DeLiso, 75 N.J.L. 808 (E. & A. 1908).
We think the appellant cannot now as a matter of right contend that the admission of such evidence was error, inasmuch as counsel at no time objected to any of the questions asked the witness Edward with reference to his relations with the defendant, nor did he request that any instructions in reference thereto be given to the jury. State v. Rhams, 14 N.J. 282 (1954). We have nevertheless given defendant a full right to review and have considered the points raised on their merits.
Two months after the acts alleged in the indictment, the police, through a forced entry into the appellant's workshop at the school where he was a custodian, found prophylactics and numerous toy whistles in separate drawers of appellant's work bench. These items were offered and admitted into evidence. The appellant denied ownership of the prophylactics in question and stated they were present in the shop when he started working there. The whistles, he said, were to give to children who from time to time assisted him in moving chairs.
It is insisted these articles were completely irrelevant and inadmissible, and in no wise connected with the indictment laid against the appellant. This is proved, the appellant insists, because the court struck them out during its charge and instructed the jury to pay no attention to them and did not permit them to be taken to the jury room.
Assuming error under the circumstances, we are satisfied the defect was cured when the items were stricken
from evidence and the jury instructed to disregard them. The record shows no objection to their admission into evidence and there was no request to charge with reference to them by the defense, the appellant in this regard apparently being satisfied with the disposition made by the trial court.
Physical evidence found in the possession and control of a defendant in a criminal case may be received into evidence, subject to the usual rules of relevancy, materiality and competency, the same as testimonial or other evidence. State v. Grillo, 11 N.J. 173 (1952); State v. Unger, 103 N.J.L. 18 (Sup. Ct. 1926), affirmed 104 N.J.L. 448 (E. & A. 1928); State v. Hill, 65 N.J.L. 626 (E. & A. 1900).
Robert testified each of the boys had been given wine taken from a bottle bearing the label "Gold Medal," and an empty wine bottle having a like label, which was found upon the school premises in a trash container in the boiler room, was admitted into evidence. Again there was no objection to its admission and there was a full, vigorous cross-examination in reference to it which almost destroyed its evidential value. Counsel made no application to the court to exclude the bottle in question from the jury's consideration, apparently being satisfied with the results obtained by the cross-examination, and we have difficulty in discerning reversible error for the reasons assigned. Under these circumstances, the appellant customarily would not now be heard to complain that his substantial rights were affected. State v. Picciotti, 12 N.J. 205 (1953); Roberts Electric, Inc., v. Foundation & Excavation Co., 5 N.J. 426 (1950); State v. Schmieder, 5 N.J. 40 (1950). Considering the question upon its merits, we reach a like result and find no error.
The weather played a part in the prosecution, as both boys testified it was rain which caused them to discontinue playing basketball outdoors and to go inside where they met the appellant.
To refute this testimony the defense entered United States Weather Bureau reports for the period in question. After these were admitted, defense counsel sought to read from them and was restrained from doing so by the trial court.
The trial judge had previously stated he would allow defense counsel to procure an expert to interpret the reports, which are rather complicated. This offer was not availed of, and the opposing attorneys agreed to submit the reports under a stipulation as to what they revealed and for any value the jury could derive from them. It is not clear from the record whether or not any stipulation as to the specific contents of the reports was communicated to the jury.
As the Appellate Division pointed out, this ruling was discretionary, and counsel for the appellant fully and freely discussed the reports in his summation to the jury and was not limited in any of his remarks or comments.
The original difficulty seems to have been encountered not in the defendant's reading the exhibit but in what was characterized as an endeavor to interpret the reports. In view of the unlimited right to comment in his summation to the jury, we see nothing so substantially prejudicial as to require a new trial.
When the appellant took the stand, he was asked if he were married and how many children he had. The State's objection to both questions was sustained by the trial court.
Basically this was error. The appellant had a right to show his marital status and his family relationship. It was a natural development in the case which should have been permitted without restriction. If State v. Randle, 128 N.J.L. 496 (Sup. Ct. 1942), is contrary to this view, it is overruled in that regard.
The record, however, shows the appellant answered that he was married before the objection was sustained, and the answer was not stricken from the record. It also appears that his son subsequently testified, without objection, in his
father's defense. We have difficulty, therefore, in determining that the error was so prejudicial under these circumstances as to warrant us in granting a new trial. We must conclude from the entire record that the jury was fully cognizant of appellant's marital and familial status.
It is said the prosecutor in his summation prejudicially referred to exhibits not properly in evidence, but this was before they had been removed by the court's own motion and while they were part of the record. It is also insisted the prosecutor made statements of fact and alluded to irrelevant matters which were primarily ...