Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Defendant Edward A. Fleckenstein appeals from a judgment of conviction after a trial without a jury before the Sussex County Court based upon two indictments charging acts of lewdness and carnal indecency in violation of N.J.S. 2 A:115-1. He also appeals from the trial court's denial of his motions to take additional testimony and for a new trial.
Defendant was charged with committing acts of fellatio upon the persons of W, the complaining witness at the trial, and one R, presently a resident of New Castle County, Delaware, who could not be located and served with a subpoena requiring his presence at the trial, pursuant to the provisions of the Uniform Act to Secure the Attendance of Witnesses from without a State, N.J.S. 2 A:81-18.
At the time of the alleged offenses on June 9 and June 19, 1957, W and R were 16 and 15 years of age, respectively; defendant was an adult. As a member of the New Jersey and New York Bars, defendant personally conducted his own defense.
Testimony was introduced at the trial demonstrating that defendant was well-known to the youth in the community of Hamburg and vicinity, and that he frequently associated with youngsters.
On June 22, 1957, after receiving a series of anonymous telephone calls reporting that a man in the Hamburg area
had been seen associating with young boys and picking them up on the highway, the state police, after a brief surveillance of the car with the reported license registration H/F 400, intercepted said vehicle. Defendant was identified as the driver and W as the passenger. As a result of the questioning that followed, defendant was arrested and, with W, was escorted to the Sussex substation of the state police where statements were taken.
W, who at the time of the trial was serving in the United States Army as a military policeman, told of how he had met defendant and how defendant had often given him rides in his car and bought him snacks at various times. The sordid facts of the alleged sexual acts performed upon W need not be detailed here. W described the meetings with defendant by himself on June 9 and with R on June 19, 1957, and the events that followed. He further testified that he was not a willing participant in the alleged activities with defendant.
Defendant denies having engaged in sexual perversion with either W or R. He contends that the United States Army, the municipal and county court judges, the prosecutor, and the state police are all against him, even though he is completely innocent of the crimes charged. He accuses the state police and the municipal court judge of forgery and perjury in forging the complaint against him, alleging that the complaint he saw when apprehended on June 22, 1957 specified the date of May 25, 1957 as the date of the alleged offense with W rather than that of June 9, 1957 as set out in the present complaint. He further charges that the prosecutor misrepresented a material fact to the court in that he withheld a statement signed by W in which the latter allegedly named May 25, 1957 as the date of the first charged offense. In short, defendant alleges that the conviction from which he is here appealing is the result of a vicious plot "to frame the defendant and involve defendant in trouble." In his brief, for example, defendant asserts:
"The long standing disputes and feuds between defendant and the Army, * * * his heading a McCarthy organization, his arrest in Germany by the Army and forcible expulsion from that country and his law suits and threatened suits against the Army, play an obvious role."
Stating that this case resolves itself into the question of whom the court believes from the testimony presented, the trial judge concluded:
"[A]fter giving this a great deal of thought and after weighing all the testimony regarding this act, and considering the collateral issues that have been brought in here to test the credibility of certain individuals, the one inescapable conclusion that I come to is ...