On appeal from the Essex County Court, Law Division.
Goldmann, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Defendants were convicted after a trial by jury upon joint indictments charging them with the rape of Miss L and the robbery of Alfred E. Blyskal.
Of the several grounds which they raise on appeal we find only one of determinative merit, viz., that the court erred in limiting cross-examination of the complaining witnesses, which was designed to affect their credibility.
The proofs offered by the State ran thus: On March 7, 1964 Blyskal and Miss L, by prior arrangement, had a social engagement. At about 10:30 of that evening Blyskal, operating
a 1955 Cadillac, called for Miss L at her address in Irvington. They drove about for a while and then went to the Joli Lounge, a tavern in Newark, where they had "about 3 or 4 drinks" and "listened to the music." At about 2 A.M. they left the tavern and went to Blyskal's car, which was parked about 75 feet away. According to Miss L, Blyskal said he felt a little tired and "he wanted to doze off for a half hour." While they were seated in the car, he in the driver's seat and she beside him, the car door on Blyskal's side was opened by one of two men. One man "had a pipe or some type of a bat or something" and struck Blyskal in the face with it. Mention was made by the men of getting Blyskal's wallet. Before he had an opportunity to give them the wallet, the man who struck him said, "jump in the car and let's get out of here." From the stand Blyskal identified defendant Steele as that person, and defendant Stokes as his companion. Blyskal was pulled from the car and thrown to the ground. The two men then jumped into the Cadillac and, with Miss L sitting in the middle of the front seat, drove off. Blyskal, despite some difficulty in locating a telephone, managed to reach the police and inform them of the robbery.
The testimony relevant to the alleged rape came entirely from Miss L. She testified that the men drove her to a desolate spot in Weequahic Park where, after the car was parked, she was "taken in the back of the car." She did not remember who "took" her there. Her clothing was removed "from the waist down." She did not remember who took her clothing off, or whether she herself removed it. She then said that her abductors, whom she identified as the two defendants, successively had sexual intercourse with her, in all four times, in the course of which they kissed her mouth and fondled her breasts. The entire affair lasted 20 minutes. She had a clear and detailed recollection of what happened, admitted that she had not been threatened either en route to the park or at the time of the "attack," or that acts of violence (other than the intercourse itself) had been practiced upon her. In fact, in her direct examination she gave no testimony whatever that
she submitted to the men through fear of violence. It was only after the direct examination was concluded that the court through a series of leading questions, which in form would have been objectionable had they been propounded by the prosecutor, asked:
"Q. Miss L., before the cross-examination starts, they forced you into the back of the car?
Q. Were you in fear when you went into the back of the car?
Q. They didn't ask you to have ...