For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Appellate Division, with one judge dissenting, affirmed the defendant's conviction of acts tending to impair the morals of a nine-year-old girl in violation of N.J.S. 2A:96-3. The defendant appealed to this Court as of right under R.R. 1:2-1(b).
The defendant was engaged in business as a private tutor in remedial reading with an office in a small building in the rear of his home in Mount Holly. After seeing a newspaper advertisement that the defendant tested children in reading without charge, Mrs. Charlotte Berg made an appointment for the testing of her three children, Dynell, Rhonda and Daniel. This was done in October 1962 and as a result Dynell began a remedial reading course with the defendant.
According to the State's testimony, Dynell continued until January 1963 when she was withdrawn and replaced by her sister Rhonda who continued with remedial reading lessons until February 10, 1963. On that date, her stepfather Marvin Berg took Rhonda to the defendant's office for her lesson at about noon, went off to do some shopping and returned for her at about 1 P.M. She was waiting at the window and when she saw his car she came out "visibly shaken." Mr. Berg testified that Rhonda was "on the verge of tears" and when he asked her what was wrong, she at first refused to answer and then said, 'I don't want to talk about it now." When they arrived home between 1 P.M. and 1:30 P.M., Rhonda talked first with Dynell and then with her mother.
Mrs. Berg testified that shortly before 1 P.M. on February 10th she was at home and received a telephone call from Rhonda who was still at the defendant's office. Rhonda sounded "very, very upset" and Mrs. Berg told her that, if her daddy did not pick her up within the next few minutes, she would come for her. Mrs. Berg also testified that she then
spoke for a moment directly to the defendant. When Rhonda arrived home shortly thereafter, Mrs. Berg spoke to her and Dynell. According to Mrs. Berg's testimony, Rhonda told her that the defendant "had put his hands down her panties and had touched here."
Rhonda herself testified during the trial that on the day in question the defendant "put his hand down my blouse" and pinched me "all over my chest." She also testified that when her father was late in picking her up she called her mother and that the defendant took the phone and spoke directly to her mother. Rhonda gave testimony as to other occurrences on unspecified dates and stated at one point that the defendant "used to put his hand in my blouse and put it down my pants." The trial court admitted this testimony "only for the purpose of lending credence to the testimony of the complaining witness, Rhonda Berg, as to the occurrence of an offense on February 10, 1963." He later instructed the jury that the State's obligation was to establish, beyond reasonable doubt, its charge of an improper act specifically on February 10th (but cf. State v. Johnson, 20 N.J. Super. 93 (App. Div. 1952)) and that the evidence with respect to other dates was received not as proof of the offense charged "but merely as tending to show the inclination and disposition of this defendant towards this child and thus to lend credence to her testimony as to the occurrence of the incident on February 10, 1963." Cf. McCormick, Evidence 328-33 (1954).
After the Bergs heard Rhonda's story, they discussed the matter with a neighbor, described as a former Mayor and a nonpracticing attorney, and as a result of this conversation Mr. Berg called the Prosecutor of Burlington County and went to his home. While at the Prosecutor's home on February 10th he talked with Chief of County Detectives McConnell, as well as with the Prosecutor. Chief McConnell testified that after talking with Mr. Berg he interviewed Mrs. Berg and her daughters Rhonda and Dynell and then placed the defendant's home under "a partial surveillance." On March
8, 1963, Chief McConnell signed a complaint against the defendant and thereafter an indictment was returned. The indictment contained two counts, the first charging the defendant with acts tending to impair the morals of Rhonda Berg, then nine years old, and the second charging the defendant with acts tending to impair the morals of Dynell Berg, then eight years old. The second count was dismissed during the trial and the case went to the jury solely on the count relating to Rhonda.
The defendant testified that he never engaged in any of the acts complained about. He asserted that Rhonda was not at his office at all on February 10th, and he introduced testimony by his wife and daughters and by two of his pupils, Mr. Olsen and Mr. Crook, in support of that assertion. He denied that he had ever accepted Rhonda as a pupil but admitted that he had tested her during January 1963. He stated that he never saw Rhonda after January 28, 1963, and that the only instruction he had scheduled for February 10th was Mr. Olsen at 11 A.M. and Mr. Crook at noon and that each of them appeared as scheduled and received instruction during the full scheduled hour. In the course of its attack on his credibility, the State established, under the present authority of N.J.S. 2A:81-12, that the defendant had been convicted of a prior crime; in fairness to the defendant it withheld from the jury the nature and severity of the prior offense and the sentence imposed. See State v. Garvin, 44 N.J. 268, 280-281 (1965); cf. Report of the New Jersey Supreme Court Committee on Evidence 66-68 (1963).
After all the testimony on behalf of the defendant as well as the State was completed, the trial court charged the jury and submitted the case to it for its determination. The jury returned a verdict of guilty and thereafter a motion for new trial was denied. The trial judge ordered that the defendant be committed to the New Jersey State Hospital at Ancora for an indeterminate period but suspended the commitment ...