Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant appeals from a conviction upon a two-count indictment which charged him, in the first count, with having been "in private guilty of an act of lewdness" with one P, contrary to N.J.S. 2A:115-1, and, in the second count, with then and there forcing and inducing said P "to submit to the doing of an act tending to debauch the said [P] and impair the morals of the said [P]," contrary to N.J.S. 2A:96-3.
Defendant's defense was that of an alibi. He did not take the stand, but produced witnesses who said he was elsewhere at the time of the alleged crime.
P testified that on Saturday, September 10, 1960, at about 6 P.M. he and his boy friend C went to the home of one B, an adult; B gave them money to go to the movies; they left the movies about 11:30 P.M. and started to hitchhike home; defendant picked them up in his automobile, took them to his apartment, gave them liquor and other
refreshments, had relations with them described as "carnal lingualism" and, about 10 A.M. Sunday, at P's request, drove P and C to B's apartment. B then drove P and C to P's home in East Orange. B knew P's parents, having lived in the same building with them previously. B entered the apartment of P's parents with P and C, but left almost immediately. P's and C's parents then questioned the boys, who first said they had slept in an abandoned house. They finally told their parents of their stay at defendant's apartment and what allegedly happened, which led to defendant's arrest.
In his statement of questions involved defendant raises the question whether "the restriction of cross examination of juvenile witnesses concerning indecencies with one [B] not party to these proceedings a few hours before the subject acts constitutes reversible error?"
The "juvenile witnesses" were P and his friend C. Defendant's brief says "[P] stated he went to [B's] house about 6:00 P.M. * * *, just prior to going to the movies, for a soda and for the purpose of getting money from him. The true purpose of the visit (indecencies tinged with prostitution) was not disclosed to the jury due to the action of the prosecutor and the trial court in refusing defendant opportunity to interrogate along these lines." The brief concludes that this was erroneous and prejudicial because it went "to the credibility of [P], and to the impairment of his morals and whether he could be debauched, essential elements of the second count of the indictment * * *." At the oral argument before us, defense counsel added that the exclusion was prejudicial because the evidence sought "goes to the question of whether or not there was in fact force or inducement."
The element of prejudice because of inability to introduce this evidence to negative force disappeared because the trial judge instructed the jury that there was no evidence of force.
As to whether the evidence sought went "to the question of * * * inducement," we hold that if defendant asked P to submit to carnal lingualism, and P did so, the mere fact that P had had similar relations with B before P met defendant would not negative inducement. N.J.S. 2A:96-3 is for the protection of children under 16. We hold that a mere invitation to a child of that age to submit to indecent acts, if accepted, is sufficient inducement to constitute the crime defined in that statute. In the case at bar the evidence showed more than mere invitation. The testimony was that defendant felt P's privates as they drove towards defendant's apartment, defendant invited P and C into the apartment, and there he gave them refreshments, including alcoholic beverages, before engaging in the act with P. Thereafter he invited P and C to stay the night, during which he repeated the act with P.
We hold also that if P submitted to the act at defendant's request, the fact that P had had previous similar relations with others did not make defendant's act one which did not tend to debauch P or impair his morals, within the meaning of N.J.S. 2A:96-3. It is not necessary for the State to prove, under that statute, that the child was not debauched, or his morals more impaired after the act than they were before. The statute forbids the performance of acts which tend to debauch the child or impair his morals -- whether they actually did so is immaterial. It follows that the proffered evidence of P's prior relations with B, to prove that P was already debauched and his morals impaired, was properly excluded.
Was the evidence admissible for the purpose of attacking P's credibility? To begin with, it must be remembered that "the trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is put in issue." State v. Pontery , 19 N.J. 457, 473 (1955). To determine whether that discretion was abused in this ...