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State v. Dunlap

Decided: June 9, 1960.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.


The Gloucester County grand jury brought separate indictments against defendant for kidnapping (N.J.S. 2 A:118-1) and rape (N.J.S. 2 A:138-1) of L.F. on February 1, 1959. Benjamin Devine, who was with defendant, was similarly indicted. The two were tried together, found guilty after an extended jury trial, and sentenced to State Prison terms of 30 to 50 years on the kidnapping charge and 25 to 30 years for rape, the sentences to run concurrently.

Defendant and Devine were taken into custody a few days after the criminal episode. They were interrogated at the local State Police barracks and each signed a statement describing in some detail the events of the early morning in question. These statements were very similar in content. The men related at length what they had done before taking the girl from her parked car and forcing her into their own, the events that ensued during an extended drive through the area, and her escape from the car to a nearby home. The accused were then taken before the West Deptford municipal magistrate and pleaded guilty to complaints of kidnapping after stating they did not want the services of an attorney. They were next taken before the Deptford municipal magistrate and pleaded guilty to rape. Following the return of the indictments, they pleaded not guilty and stood trial.

Defendant first argues that his confession was improperly admitted into evidence, since it was not shown that it had been read to or by him before he signed it, citing State v. Smith , 27 N.J. 433 (1958); State v. Monahan , 16 N.J. 83

(1954); State v. Cleveland , 6 N.J. 316 (1951); and State v. Donato , 106 N.J.L. 397 (E. & A. 1930). There was no testimony that defendant's statement was ever read to him or by him after it had been taken and before he signed it by printing his name on the last page and initialing the preceding pages.

After defendant had signed, the police authorities took Devine's statement. Although he denies that he read it or that it was read to him, he signed it, allegedly because he was afraid of what the police would do to him. The testimony of the three police officers who were present was entirely to the contrary; they said the statement was freely given, typed out, read to Devine, and he then signed the last page and initialed the others. The proofs show that defendant was then brought into Devine's presence and told that Devine's statement would be read to him. Defendant was asked if he would sign the statement voluntarily if he found it true and correct, and he said he would. Devine's statement was then read to him and, after being asked whether it was true and correct, he said, "That's close enough," and he signed it by printing his name.

As noted, the Devine statement paralleled defendant's. Defendant voluntarily signed it after it had been read to him and he had acknowledged it as correct. Insofar as that statement detailed defendant's participation in the alleged kidnapping and rape, it became as much his written confession as though prepared by his own hand, and was admissible against him under the above cited decisions.

In State v. Monahan , above, defendant signed as true a statement made by his son after it had been read to him, the son also signing. Defendant claimed error in the admission of the statement into evidence. The Supreme Court found otherwise, stating:

"Here, however, the statement in substance is the appellant's own statement and derives force from the admission of the prisoner himself of the inculpatory concessions. It was signed by him in three different places and acknowledged by him in writing to be accurate and 'every word of it is true.'" (16 N.J. , at page 90)

The fundamental object of proof of a confession is to render it trustworthy. State v. Donato , above, 106 N.J.L. , at page 406. Whether defendant was present when Devine gave his statement is not material in the circumstances. The fact that it was read to him and he knew its contents before he signed it certainly indicates its trustworthiness.

After hearing the testimony of the police officers and of defendant and Devine relating to the circumstances under which the statements were made, the trial judge ruled that the statements were voluntary. As was observed in State v. Smith , above, 27 N.J. , at pages 459-460, whether a statement or confession is voluntary depends upon the facts in each case. The determination of the trial court will not as a rule be disturbed on appeal when there is sufficient evidence to ...

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