Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned).
[72 NJSuper Page 248] Defendants Richard Kirk and Joseph Bruce were jointly tried in the County Court and convicted of rape.
On the evening of September 25, 1958 complaining witnesses Carol Ann Kierspel (Carol) and Mary Ann Venezzio (Mary), defendants Kirk and Bruce, and one Jack Foley rode in Carol's automobile from Newark to Cliffside, there attended a motorcycle club meeting and then returned to Newark. Thereafter Foley drove the automobile, with the other four therein, to the Port Newark area where he "jumped the curb" and drove some 400 feet into the meadows adjacent to the Newark Airport.
Carol testified that Foley then took Mary for a walk and defendant Kirk, who was seated in the front of the automobile, jumped to the rear and forcibly assaulted her (Carol) while defendant Bruce held her. Mary related that when she and Foley returned, Carol and Foley went for a walk and while she (Mary) was standing by the automobile, defendant Bruce grabbed her arm and forced her into the back seat where she was forcibly assaulted by both defendants, one assaulting her while the other restrained her. Defendant Kirk admitted that he had sexual intercourse with both girls and defendant Bruce admitted he had such intercourse with one, but both contended these acts were performed with the girls' consent. In support of this contention Bruce testified that about three months before the incident herein he, Kirk, Mary and others made a week-end trip to Laconia, New Hampshire, during which he (Bruce) "spent a night in bed with Mary" and had sexual intercourse with her. While Mary admitted making this trip, she denied the balance of these accusations. Considerable testimony was offered on behalf of defendants and on behalf of State with reference to this trip which, in view of our determination herein, we find unnecessary to detail.
Foley was jointly indicted and tried with defendants upon the theory that he aided and abetted them, but he was acquitted by the jury.
About five months after the incident Foley, upon apprehension by the police, gave them a written statement in narrative form. Therein he denied intercourse with either
girl, admitted he drove the car into the meadows, but stated he "would not have come" had he known they were "going to do anything like that to them."
At the trial the State offered Foley's statement into evidence. Counsel for defendants Kirk and Bruce objected thereto on the ground it "contained double hearsay in that Foley related damaging and prejudicial statements made to him by an alleged victim out of the presence of the other defendants." They also requested that this portion of the statement be deleted. The objection was overruled, the request denied and the statement admitted in evidence. At the time of the admission and later in its charge, the court instructed the jury that Foley's statement "is binding and evidential only against him"; "The statement * * * is to be completely disregarded and not to be considered by you as proof in the case against the defendants * * * Kirk and * * * Bruce"; "* * * the statement is evidential only against the person who made the statement and that person is the defendant * * * Foley * * *."
Counsel for defendants now urge that:
"The trial court committed prejudicial error in refusing to delete from a co-defendant's written statement admitted into evidence certain damaging hearsay within hearsay statements with the result that the hearsay statements, despite limiting instructions, were ultimately used directly and substantively against the other co-defendants."
The challenged portions of Foley's statement are as follows:
"After we [Foley and Carol Ann Kierspel] got away from the car I laid down in the grass. Carol Ann Kierspel then said that Richard Kirk and Joseph Bruce were like animals. At first she would not tell me anything. Then she said they were brutes and ...