Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Passaic County grand jury returned an indictment in two counts charging defendant with carnal abuse of L, a 14-year-old girl, in violation of N.J.S. 2A:138-1. The first count charged the offense was committed on October 5, 1961 and the second count charged an offense in November 1961. A jury trial resulted in a verdict of guilty on the first count and not guilty on the second. The County Court judge imposed a State Prison sentence of 3-5 years. On this appeal defendant contends that (1) the trial court erred in denying his motion for judgment of acquittal at the end of the State's case and in not setting the verdict aside as against the weight of the evidence; (2) plain error by the trial court in permitting the jury to consider the doctrine of assenting silence as probative of guilt; (3) plain error in the court's failure to caution the jury with respect to the inherent weakness of the doctrine of assenting silence; and (4) plain error in failing to charge the jury that it might draw an unfavorable inference against the State because it did not call certain witnesses.
Defendant had from time to time lived with L's mother in Paterson and was called "stepfather" by her children. L testified
that on October 5, 1961 she and a younger brother rode with defendant from their home to his store, where he was to give them some groceries for the house. The three descended to a cellar where defendant said the groceries were kept. He then sent the boy upstairs, held a knife to the girl's throat, ordered her to disrobe, and had sexual relations with her. They then rejoined the boy, who had been waiting upstairs for 15 to 25 minutes. The girl had been crying and her eyes were red. To make sure her mother would not suspect anything, defendant drove L and her brother around for a while before taking them home. The girl further testified that she did not tell her mother of what had happened for several months because she was in fear of defendant. She said that sometime in November 1961 -- she could not fix the date -- defendant again took her to the same cellar and again carnally abused her.
L's pregnancy came to light in February 1962. On March 13 an older brother lodged a complaint against defendant with the Paterson police. The girl gave the police a statement the next day, in the course of which she said there had been two occasions when defendant sexually abused her, the first on August 4, 1961 and the second on February 23, 1962. Defendant was present when this statement was given, but remained silent throughout.
The indictments, as noted, charged defendant with carnal abuse on October 5, 1961 and in November 1961. To explain the discrepancy in dates, L testified that "at that time I didn't know my months in Spanish so good, and my mother told me it was on August, and I don't know what month in English, so I told that month and when I got home my mother told me I told the wrong month because it was supposed to be October, because I didn't know my months in Spanish and she told me in Spanish." She insisted, however, that the correct date of the first incident was October 5, 1961, and the second had happened in November.
Defendant asserts that L changed her mind about the dates and testified that the acts in question took place on October 5
and in November 1961 in order to conform to the fact that her child was born on July 18, 1962. That birth, he says, proved that she had had relations with some male, but not necessarily with him. In his testimony defendant suggested that the complaint lodged with the police on March 13, 1962 was in order to "get even" with him because of an argument he had had with the girl's mother the day before.
Defendant asks that we reverse the conviction because the trial judge wrongly denied his motion for judgment of acquittal at the close of the State's case. R.R. 3:7-6 provides that
"* * * The court, on motion of a defendant or of its own motion, shall order the entry of judgment of acquittal * * * at the close of the State's case or after the evidence of both sides has closed, if the evidence is insufficient to warrant a conviction. * * *"
The test to be applied on a motion made at the close of the State's case is whether the evidence before the trial court, viewed in its entirety and giving the State the benefit of all legitimate inferences reasonably to be drawn therefrom, was such that the jury could properly find, beyond a reasonable doubt, that defendant was guilty of the crime charged. State v. Fiorello , 36 N.J. 80, 90 (1961). It is not required that the State's proofs exclude every reasonable hypothesis except that of guilt. State v. Graziani , 60 N.J. Super. 1, 13 (App. Div. 1959), affirmed 31 N.J. 538 (1960), certiorari denied 363 U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2 d 1524 (1960). Our review of the record convinces us that the evidence adduced by the State established a prima facie case, requiring defendant to present his defense.
Defendant's argument under this point proceeds on the mistaken assumption that corroborative evidence of the victim's testimony was legally required. It is clear that in our jurisdiction a conviction for a morals or sex offense may
be sustained on the uncorroborated testimony of the victim. State v. Fleckenstein , 60 N.J. Super. 399, 405 (App. Div. 1960), certification denied 33 N.J. 109 (1960). Moreover, it appears that in the absence of statute the law elsewhere is generally in accord. 7 Wigmore on Evidence (3 d ed. 1940), § 2061, p. 342; Annotation, 60 A.L.R. 1124, 1125 (1929).
Despite defendant's assertion that the State's case rested solely on the girl's uncorroborated testimony, there were, in fact, other elements of proof pointing toward guilt. There was the testimony of Sergeant Moore, the officer who took defendant into custody for investigation on March 13, 1962, who said that defendant started to flee when approached by him. (When defendant took the stand he denied that he ran.) Although defendant stopped after taking a few steps, the circumstance was some evidence, however slim, tending to prove a consciousness of guilt. Cf. State v. Petrolia , 45 N.J. Super. 230 (App. Div. 1957). Of similar effect was the testimony of L's brother that defendant hid when the police came to the apartment. Cf. State v. Reed , 62 N.J. Super. 303, 311 (App. Div. 1960), reversed on other grounds 34 N.J. 554 (1961).
Defendant points to several inconsistencies in the girl's testimony which, it is claimed, renders her testimony suspect. First, there was the question of the dates of the offenses, already referred to. Next, the girl testified that she became pregnant as a result of the October 5, 1961 incident, and that this occurred at a time when she was experiencing her menstrual period. Defendant argues that the child could not have been conceived at such time. (It is appropriate to observe at this point that the instant litigation is not a bastardy proceeding. It is not material that the baby was sired at another time or by another man. The question which the jury had to determine was whether defendant carnally abused the girl on October 5, 1961 and again in November ...