On certification granted.
For reversal in part and affirmance in part -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. Opposed -- None. The opinion of the court was delivered by Wachenfeld, J.
Under an indictment in three counts handed down by the Monmouth County grand jury in March of 1957, George Riley and his brother, Lester Riley, were convicted of the crimes of rape, assault with intent to commit rape and atrocious assault and battery. George Riley was sentenced to the State Prison for not less than 10 nor more than 15 years on the rape conviction while sentence was suspended on the other two counts. On the rape charge, Lester Riley was committed to the New Jersey State Hospital for a period not to exceed 30 years. He, too, received suspended sentences on the other two convictions.
George alone appealed to the Appellate Division, which reversed his convictions of assault with intent to commit rape and atrocious assault and battery. That tribunal, on the grounds hereinafter discussed, also reversed the rape convictions of both George and Lester and ordered a new trial on the rape charge against them. We granted the State's petition for certification, 27 N.J. 279.
The crimes in question were allegedly perpetrated on February 26, 1957. For the purposes of this opinion, the victims will be referred to as Betty and Roger. At the time the subject offenses were supposedly committed, Betty was a high school senior of 17 years of age. Roger was a boy friend who had been dating her on the average of three times a week for approximately five months.
According to Betty's testimony at the trial, she and Roger had a prearranged date for the evening of February 26. They left Betty's home in Eatontown in Roger's automobile at about 7:30 P.M. and drove around the nearby country-side for several hours, eventually stopping at a restaurant. After they had eaten, they started for Betty's home. She stated that the headlights of Roger's car began to grow dim, or failed completely, so Roger backed into a "driveway" off Grand Avenue in Eatontown and extinguished his lights in order to let them "cool off." The time was approximately 10:30 P.M. Betty testified that on a prior occasion while she was out with Roger the headlights of his car had not functioned properly. She admitted that she and Roger had parked in the same place once before. Apparently, the "driveway" is not connected to any residence. Betty stated that Roger's car was parked about one-half its length from the street on the night in question.
She and Roger sat in the automobile talking and listening to the radio. Both testified that they were not engaged in any amorous adventures. After a short interval had elapsed, another automobile turned into the driveway with only its parking lights illuminated. This car was blocked by Roger's automobile, and its driver blinked his parking lights. Roger interpreted this as a signal that the driver of the strange car wished to pass so he moved his own automobile further back into the driveway. The other car drove to a "clearing" just behind where Roger was parked and stopped.
Betty and Roger continued listening to the radio for several more minutes when suddenly the doors of Roger's car were flung open by four men who were yelling and
screaming. The intruders had scarves over their faces and one of them began hitting Roger with a "stick" or "club." Two others seized Betty by the shoulders and pulled her out of the automobile, dragging her over to the strange car, where they forced her into a prone position on the back seat. She was hysterical, and one of her assailants kept slapping her with the back of his hand and telling her to be quiet. A suede jacket was thrown over her head and each of the men then raped her.
After the criminal acts had been consummated, the rapists told Betty they would let her go but that if she did not stop screaming they would kill her. They then dragged her back to Roger's car and pushed her inside. Roger's car keys were returned to him, and both he and Betty were threatened with violence if they told anyone of what had occurred. Roger promptly drove off and notified the Eatontown police of the commission of the crimes.
George and Lester Riley, their younger brother Melvin, and one Charles Thornton were apprehended as the culprits. They admitted having encountered Betty and Roger in the driveway off Grand Avenue on the night of February 26 but denied committing any crime. The two older Rileys and Charles Thornton were jointly indicted, but a severance was granted to Thornton, who testified as a State's witness against the Rileys. Melvin Riley was treated as a juvenile delinquent and not indicted since he was only 17 years old. Betty positively identified George and Lester Riley as her assailants despite the fact that their faces had been covered with scarves and she had only seen their eyes and the "shape" of their hair. Roger testified that he could not recognize any of the men who had attacked him.
The stories told at the trial by the Rileys and Thornton coincided to some degree. They testified that they, in company with Melvin, had left a movie in Long Branch at around 10:30 P.M. and were returning home down Grand Avenue in Eatontown when they noticed a darkened car parked in a driveway. George Riley claimed to have seen the same car parked there on previous occasions.
On the spur of the moment, the four boys decided to turn into the driveway with the idea in mind, according to Thornton, that they would "scare" the occupants of the parked car by pretending to be policemen. George and Lester testified that the headlights of their car were on and that after they had entered the driveway they could see a girl's legs resting on the dashboard near the steering wheel and a boy's head on the passenger's side of the parked auto. Thornton merely stated that he saw the front seat of the car blocking the driveway was occupied by a boy and a girl.
George Riley blinked his lights, and the parked automobile was thereupon backed up sufficiently to allow the Rileys' car to pass. George brought his car to a stop a short distance behind the other vehicle and he, Lester, Melvin and Thornton spent several minutes debating what their course of action should be. Thornton stated that during this interval the heads of the occupants of the first car had disappeared from sight, but that he could see one of the girl's legs in a window.
Finally, the Rileys and Thornton emerged from their automobile and walked up to the other car. George Riley stated the doors of this car were not completely closed. Thornton testified he saw Betty and Roger in the act of sexual intercourse. George Riley did not say that Roger and Betty were actually engaged in having sexual relations, merely stating that, after the doors of Roger's car had been thrown open, Roger would not look at him "until he fixed his pants." Lester Riley was not questioned as to what he had seen upon his arrival at Roger's car.
Each of the Rileys denied striking Roger and testified that they had not seen any member of their party with a stick or club in his hand. They stated Betty had gotten out of Roger's car voluntarily and was "hollering" so much that they went over to her in order to calm her. They both testified that they did not take Betty to their own car, but instead walked her back to Roger's car, telling her not to be afraid. George Riley stated that his brother Melvin had recognized Betty as a classmate and that he, George, had thereupon asked Betty, "Does your mother know that you
are out here?" According to George, Betty willingly re-entered Roger's car and the respective parties then drove off. Lester testified the Rileys spent no more than five or ten minutes at the scene.
Thornton's testimony materially diverged from that of the two Rileys at the point where the intruders had revealed their presence to Roger and Betty by pulling open the doors of Roger's car. Thornton testified that Roger "jumped up" and that someone thereupon hit him. George then came around to the passenger's side of the car, where Thornton was located, and "took the girl out of the car and took her over to his car, and she hollered, and then Lester, he left from the fellow's car and he went over there to where George and the girl were." Lester gave Thornton a stick to hold and Thornton went around to the driver's side of Roger's car, leaving Melvin on the passenger's side. Thornton stated he and Melvin had stood beside Roger's car for an indeterminate length of time while George and Lester were with Betty. He denied that he and Melvin were consciously "guarding" Roger during this period. On cross-examination, he also denied seeing either George or Lester get into the Riley car with Betty. Finally, Thornton admitted he had heard Lester tell Roger "that he knew his license number and for him not to say anything * * * about it to anybody."
At the request of the Eatontown police, Dr. George Henkel, Jr., examined Roger and Betty at about 1:45 A.M. on the morning of February 27. He testified that he had found a five-inch welt, or raised bruise, on Roger's left arm, a two-inch welt on his left wrist and another on the left angle of his jaw. The doctor stated that in his opinion these injuries had been caused by blows from a stick or club.
His examination of Betty revealed a recently inflicted abrasion on her left temple and a large, fresh bruise near her left eye. Her genitalia were inflamed and swollen as though they "had been traumatized or irritated quite a bit," and her hymenal ring had been ruptured and was bleeding. Vaginal smears disclosed the presence of highly motile sperm
indicating recent intercourse. The doctor testified that Betty was greatly disheveled and in shock and that her underpants had blood on them.
Dr. John P. Duffy, a chemist and toxicologist, was called as an expert witness on behalf of the State. He testified that he had found seminal stains on the skirt Betty was wearing the night of February 26 and that he had discovered adhering to her underpants a deeply pigmented hair which could only have come from a colored person.
Sergeant Harry Leo of the Eatontown Police Force testified as to Betty's physical appearance when he went to her home at around 10:00 A.M. on the 27th of February. He said he had observed that her lips were greatly swollen and that "She had a very large swelling about the size of an orange about the eye * * * and near the temple she had a swelling there and was starting to discolor."
The Appellate Division held it was error for the trial judge to permit the jury to return verdicts of guilt against the appealing defendant, George Riley, on both the count charging rape and that charging assault with intent to commit rape, and the State so concedes. We are in accord.
The lesser crime of assault with intent to commit rape is necessarily a constituent element of the greater crime of rape, and the two merge when a conviction for the greater ensues. Cook v. The State, 24 N.J.L. 843 (E. & A. 1855). The offense of rape embodies but one criminal transaction, and the liability for that offense may not be fractionalized according to its component parts. See 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).
George Riley's conviction of the crime of atrocious assault and battery upon the person of Roger was reversed by the Appellate Division on the ground that the State had utterly failed to prove the identity of Roger's attacker. Defendant asserts the conviction was also erroneous for the reason that the alleged battery did not result in a breaking of Roger's skin. N.J.S. 2 A:90-1 provides: "Any person who commits
an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor." It is contended an essential part of a "wounding" is a severing of the skin and that since Roger's injuries consisted of welts, his assailants could only be guilty of, at best, simple assault and battery. The Appellate Division discussed this last question but did not pass on its merits.
There was ample evidence to establish that Roger had been battered in a vicious fashion with a stick or club, and we think it is immaterial that the precise identity of his assailant remains unknown. Obviously, the culprit was one of the Rileys or Charles Thornton. They were all linked ...