Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
[89 NJSuper Page 447] This is an appeal from a judgment entered after a jury verdict in the Monmouth County Court,
convicting defendant Robert F. Terry of rape, in violation of N.J.S. 2A:138-1. Two other defendants, Visco and Nonemacher, were indicted for aiding and abetting defendant in committing the crime, but the charges against them were dismissed on motion at the close of the State's case.
Defendant's primary point on this appeal is that the court committed plain error in its supplemental charge to the jury. The relevant facts follow. In its main charge the court properly charged, without objection, the three necessary elements of the crime of rape, to wit, carnal knowledge, force and lack of consent. The jury then retired and approximately two hours later, through its forelady, indicated that it had a question. At that time the following colloquy took place in open court:
"THE COURT: Madam Forelady, you have a question for the court?
THE FORELADY: Yes, we have been deliberating and have not clearly -- it is not clearly in our minds just what is force?
THE COURT: You don't know what force --
THE FORELADY: What is force? (Turning to the rest of the jurors: Isn't that it?)
THE COURT: You want to know whether it was forcibly done?
THE FORELADY: What degree of force?
THE COURT: The degree of force sufficient to overcome any resistance that may have been put up by the female.
THE FORELADY: And also a verbal answer that she would give him, whether she consented or not? Would that mean she would say yes or no, or just to a point where it happened?
THE COURT: Well, it wouldn't be necessary for her to say yes or no. If she consented tacitly, that would be sufficient, where if she resisted tacitly, that ...