For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
[49 NJ Page 375] This case arose out of a savage attack upon a young woman taken at gunpoint from her automobile in front of her home. There were four youthful assailants. One was dealt with as a juvenile. The others were tried before a jury upon indictments for rape, robbery and atrocious assault and battery. The appellants, Broxton and Ogburn, were convicted on all charges. The defendant Clark, convicted of rape and robbery but acquitted of atrocious assault and battery, did not appeal. We certified the appeals before argument in the Appellate Division.
The first issue is whether it was error to try defendants jointly. The joinder was expressly authorized by R.R. 3:4-8 and 3:5-6. A severance may be had if prejudice may ensue from a joint trial, R.R. 3:5-7, and the question is whether the trial court misused its discretion in refusing to order separate trials.
The claim of prejudice rests upon the circumstance that the State introduced the confessions of the defendants, each of which referred to the activity of three other associates in the offenses. The trial court excised all references which would identify another defendant as we held must be done in State v. Young, 46 N.J. 152 (1965). The jury was instructed at the time each confession was admitted and also in the charge at the end of the case that a confession could be used only against the defendant who gave it and that it should indulge in no speculation with respect to the excisions the court had ordered. Nonetheless defendants say they were harmed by each other's written statement.
The confessions were in essence mutually consistent, and none was exculpatory at the expense of another defendant. With the excisions referred to, the confessions agreed with the testimony of the victim and of the juvenile offender mentioned above who testified for the State, and as well with the facts otherwise established. That the crimes occurred was not questioned by the defense. No one disputed the fact that the victim was taken at gunpoint from her automobile and forced into a stolen car occupied by four males; that she was taken to a vacant flat where she was raped seven times; that she was brutally beaten about the face and head with the butt of the gun and her nose fractured; that a lighted cigarette was applied to her thigh; that her money and wristwatch were taken from her; that while her captors were thereafter transporting her in the stolen car, the owner of the car gave chase, as a result of which the assailants fled from the vehicle and their victim was rescued by the pursuers and the police. None
of this was challenged. Rather each defendant testified that he was beaten into accepting a story the police gave him and that in fact he was elsewhere at the time of the crime.
Thus, beyond implicating the individual who signed the confession, each statement served only to confirm the occurrence of the criminal events in terms that were not disputed. The only real issue as to each defendant was whether he was one of the four offenders. After the excisions, there remained nothing in any confession which on its face or because of some collateral circumstance identified any other defendant as one of the culprits. This being so, we see no reason to doubt the ability of the jury to comply with the trial court's instruction that the confession may bear against only the defendant who gave it. See, State v. Johnson, 31 N.J. 489, 506-507 (1960), appeal dismissed 368 U.S. 145, 82 S. Ct. 247, 7 L. Ed. 2 d 188 (1961), cert. denied 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2 d 195 (1961); State v. Ordog, 45 N.J. 347 (1965), cert. denied 384 U.S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2 d 1025 (1966); State v. Green, 46 N.J. 192, 197 (1965), cert. denied 384 U.S. 946, 86 S. Ct. 1475, 16 L. Ed. 2 d 544 (1966).
Each defendant attacks the trial court's finding that his confession was admissible. We see no substance to the claim.
Defendants further contend the trial court erred in hearing the testimony as to voluntariness in the presence of the jury. It has long been the rule in this State that the trial judge may, in his discretion, try that issue in or outside the presence of the jury. State v. Gruff, 68 N.J.L. 287, 290 (E. & A. 1902); State v. Fiumara, 110 N.J.L. 164, 166 (E. & A. 1933); State v. Walker, 33 N.J. 580, 592 (1960); State v. LaPierre, 39 N.J. 156 (1963), cert. denied Bisignano v. New Jersey, 374 U.S. 852, 83 S. Ct. 1920, 10 L. Ed. 2 d 1073 (1963); State v. Tassiello, 39 N.J. 282, 291 (1963); State v. Loray, 41 N.J. 131, 136 (1963); State v. Ravenell, 43 N.J. 171, 183 (1964), cert. denied 379 U.S. 982, 85 S.
Ct. 690, 13 L. Ed. 2 d 572 (1965); State v. Cook, 47 N.J. 402, 411-412 (1966). Wigmore speaks of the practice in permissive terms, saying the jury "may be withdrawn." 3 Wigmore, Evidence (3 d ed. 1940), § 861, p. 349. In State v. LaPierre, we said (39 N.J., at pp. 171-172):
"Bisignano asked the trial court to try the issue of voluntariness in the absence of the jury. No reason was advanced for that course, defendant simply contending the jury had to be excused.
There is disagreement elsewhere as to the propriety of taking the testimony initially in the presence of the jury. See Meltzer, 'Involuntary Confessions: The Allocation of Responsibility between Judge and Jury,' 21 U. Chi. L. Rev. 317, 330 (1954); Annotation 148 A.L.R. 546 (1944). The differences may well be influenced by the roles ascribed to judge and jury in the several jurisdictions. We have but recently reiterated that the subject rests in the sound discretion of the trial court. State v. Walker, 33 N.J. 580, 592 (1960). We are not dissuaded from that view by the argument here advanced, that a judge may be influenced to admit a confession because, if it is excluded after testimony is taken in the jury's presence, there will likely be a defense motion for a mistrial.
The question then is whether the trial court misused its discretion. We think it did not. Defendant did not point to a fair need to excuse the jury either throughout or during some stage of the hearing. Nor does it appear that the inquiry was in fact hampered by the jury's presence; and since the confession was later admitted into evidence, it was ...