Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant George Riley appeals from a judgment of conviction, entered by the Monmouth County Court pursuant to a jury verdict, of the crimes of rape, assault with intent to commit rape, and atrocious assault and battery. The appeal is in forma pauperis , by leave of court. Defendant filed a brief pro se , and thereafter assigned counsel filed a supplemental brief.
The indictment, in three counts, charged George Riley, Lester Riley and Charles Thornton with rape (N.J.S. 2 A:138-1) and assault with intent to commit rape (N.J.S. 2 A:90-2) upon the person of W, and with atrocious assault and battery (N.J.S. 2 A:90-1) upon the person of her male companion M, the crimes allegedly having been committed on February 26, 1957. A severance was granted as to Thornton; the two Rileys were tried and found guilty. Their motion for a new trial on the ground that the verdict was against the weight of the evidence was denied. The court sentenced George Riley to State Prison for not less than 10 nor more than 15 years on the rape charge, and suspended sentence on the other two counts. Lester Riley was sentenced to the New Jersey State Hospital for observation and treatment for a period not to exceed 30 years on the rape count; sentence was suspended on the charge of assault with intent to commit rape, and a suspended sentence of from three to seven years was imposed for the atrocious assault and battery, this sentence to run concurrently
with the sentence for rape. Only George Riley appeals.
The testimony on behalf of the State indicated that W, a high school senior aged 18, and her friend M of about the same age, white persons, had been out on a date on the evening of February 26, 1957. On the way home M parked his car in a dark driveway off Grand Avenue in Eatontown, with no lights on the car. W's explanation was that the lights were not working properly and that she and M were sitting in the car listening to the radio "waiting for the lights to cool off." Both testified that nothing improper was going on. Shortly thereafter a car containing defendants George and Lester Riley, their younger brother Melvin, and Charles Thornton, all Negroes, drove into the driveway, its lights blinking as a signal to let them pass. M pulled his car over sufficiently to let defendants' car pass and it stopped a short distance in back and stood there with lights extinguished. After a few minutes all four occupants of the second car approached the first car, opened the doors and someone struck M across the arm and back with a stick. Two of the men, identified by W as George and Lester Riley, pulled her out of the car, pushed her into the back seat of their car, covered her head with a jacket, and then forcibly had sexual relations with her, in the course of which they also struck her several times in and about the head and shoulders. She says she "dazed out." The two men then put W back into M's car and warned them not to tell anyone. The victims drove off and immediately notified the police.
The place of the alleged attack was dark and W's assailants were wearing scarfs across the bottom half of the face. She saw only their eyes and cut of hair -- the scarf of one momentarily fell down, but she did not remember which one. Nevertheless, she insisted she could identify the two Rileys.
Thornton, who was with the Rileys, testified for the State. He said that as they passed along Grand Avenue they saw M's parked car and decided to pretend they were police
officers and scare the occupants. When they got to the car they saw the boy having sexual intercourse with the girl in the front seat. M jumped up and someone hit him; George Riley took the girl over to his car, some 10 or 15 feet away, and then Lester Riley joined them. He did not see George or Lester get into the Riley car.
The doctor who had examined M and W early on the morning of February 27 testified that M had three welts on his left arm, wrist and left jaw bone. The girl had an abrasion on the left temple and a black and blue mark on her left eye. Her vaginal opening was swollen and irritated, and there was a small laceration with bleeding on the left side of the hymen. Examination of vaginal smears under the microscope showed the presence of fresh sperm. The girl was in a state of shock.
After defendant had unsuccessfully moved for judgment of acquittal on the atrocious assault and battery charge, the two Rileys testified for the defense. Both denied raping the girl or hitting M with a stick. They said that the couple was having intercourse when they came upon them. Both men had been convicted of previous crimes.
In its charge, the court read to the jury the language of the statutes covering the criminal acts, but did not define the necessary elements of either rape or assault with intent to commit rape. The defense made no objection, and the only request was that the court charge that the indictment was not evidence of guilt. This was granted. The jury, after requesting and receiving further instructions, returned a verdict of guilty for each of the defendants on each count.
Before considering that aspect of the appeal which involves the count charging rape, it would be well to dispose of the points raised by defendants as to the other two counts.
Defendant argues that conviction on the second count charging assault with intent to commit rape, and the suspended sentence imposed thereon, were illegal. The rules provide for an appeal even though a suspended sentence is imposed, R.R. 1:2-4. Assault with intent to commit rape and its actual commission are parts of one and the same
transaction and constitute but one crime. The State so concedes, and indeed, our courts have in effect so held. Cook v. State , 24 N.J.L. 843 (E. & A. 1855); cf. State v. Hill , 44 N.J. Super. 110 (App. Div. 1957); State v. Landeros , 32 N.J. Super. 168 (App. Div. 1954), reversed on other grounds, 20 N.J. 69 (1955). It was error for the trial court to authorize the jury to bring back a verdict of guilty on the assault with intent to commit rape count as well as the rape count. The judgment of conviction on the second count of the indictment charging assault with the intent to commit rape must therefore be reversed.
Defendant also contends that the verdict of guilty on the third count of the indictment charging atrocious assault and battery was contrary to the weight of the evidence. We find nothing in the testimony identifying either of the defendants George Riley or Lester Riley as the person who wielded the stick on M, so that the judgment of conviction on this count must be reversed. This makes unnecessary any consideration of defendant's argument that "wounding," as used in N.J.S. 2 A:90-1 ("Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor") requires an actual breaking of the skin. The testimony here is undisputed that the injury inflicted consisted only of welts and bruises and that M's skin had not been broken. Although the court in State v. Capawanna , 118 N.J.L. 429 (Sup. Ct. 1937), affirmed 119 N.J.L. 337 (E. & A. 1938), stated that little has been said in our cases in definition of the term "wounding" because the meaning is "rather obvious," and cited certain definitions of "wound" (118 N.J.L. at page 432), it did not attempt to determine whether a breaking of the skin was necessary. The court only concluded that where the maiming or wounding is done by an assault and battery that is "savagely brutal or outrageously or inhumanly cruel or violent," the statutory language has been met, and held that to constitute an atrocious assault and battery it need not be shown that the maiming or wounding was accomplished by the use of
a weapon or implement. Subsequent cases, in differentiating atrocious from simple assault and battery, have done little more than enunciate these criteria, which obviously are concerned only with the quality of the attack itself and not with the objective injury inflicted. We note, incidentally, that the weight of authority in other jurisdictions seems to be in accord with defendant's contention, it being rather widely held that the crime of unlawfully wounding with intent to maim requires that there must be a complete parting or solution of the skin. See Annotation, 16 A.L.R. 955, 958 (1922); Harris v. Commonwealth , 150 Va. 580, 142 S.E. 354, 58 A.L.R. 1316 (Sup. Ct. App. 1928).
We deal now with the main point of the appeal -- defendant's contention that the manner and extent of the trial judge's participation in the examination and cross-examination of witnesses exceeded the bounds of judicial ...