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State v. Welsch

Decided: February 16, 1959.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAROLD J. WELSCH, DEFENDANT-APPELLANT



On certification granted.

For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

The defendant was convicted by a jury of committing an act of open lewdness in violation of N.J.S. 2 A:115-1. He was fined $200 and sentenced to an indeterminate term at the Bordentown Reformatory. Sentence was suspended, however, upon condition that he submit to psychiatric care.

On appeal, the Appellate Division affirmed. We granted the defendant's petition for certification. The grounds of appeal urged here are substantially the same as those presented below.

The sordid facts as developed at the trial need not be detailed other than as commented on hereafter since the disposition of the cause does not turn on this phase of the appeal.

The incident in question allegedly took place on Sunday, April 28, 1957. The State's case rested entirely upon the testimony of the complaining witness, a married woman, who at the time of the occurrence was accompanied by her six-year-old niece. This testimony was not corroborated in any respect.

The defendant, a married man and the father of three children, took the stand and emphatically denied the charges made against him. He testified as to a certain skin irritation with which he was afflicted and the resulting physical discomfiture plus his attempts to relieve himself therefrom, which he claims brought about the visual misinterpretation testified to by the complaining witness. The existence of dermatitis was corroborated by his wife and a doctor.

The Appellate Division concluded that although there were some inconsistencies in the complaining witness' testimony,

her story basically "remained unchanged throughout the cross-examination."

The defendant continues to insist, however, despite the adjudication below, that the verdict of conviction was against the weight of the evidence. He also contends that it was the product of passion and prejudice created in part, if not wholly, by the statements of the prosecutor in summation which stressed the fact that the defendant had not produced character witnesses on his behalf and asserted that his failure to do so created an issue which might be decisive of the case submitted to the jury for determination. It is urged these comments constitute prejudicial and reversible error under our plain error rule, R.R. 1:5-1(a), even though no objection was offered.

As to the defendant's contention that the verdict was contrary to the weight of the evidence because the testimony of the State's only witness was inconsistent and incapable of belief, it is quite apparent from the record that the whole case turned upon the credibility to be given to the testimony of the complaining witness as contrasted with the complete denial of the defendant under oath. Even though there were minor inconsistencies and conflicts in the State's evidence, the issue nevertheless resolved itself into a contest between two versions of the truth, a situation always presenting a jury question.

It may well be that it would seem improbable that a man would act the way the defendant is described by the State as having acted, but this conclusion is buttressed by faith in human nature and experience with the normal standards ...


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