Kilkenny, Carton and Crahay. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant was found guilty by a jury in the County Court of entry with intent to commit rape, in violation of N.J.S. 2A:94-1, and rape of a 16-year-old deaf-mute girl, in violation of N.J.S. 2A:138-1. He was sentenced by the trial judge to State Prison for a term of not less than two nor more than four years for each offense, the sentences to run consecutively. Defendant appeals from the judgments of conviction.
Defendant's first contention is that the trial court erred in determining in the presence of the jury the victim's competency to testify. Argument is made that her lack of competency to testify had been determined by the same trial judge at a previous trial of this same indictment. At that time the jury had failed to reach an agreement, thus necessitating the second trial. Defendant maintained at the inception of the later trial that the trial judge should take judicial notice of his prior ruling on her lack of competency and avoid prejudice by not having her presented to the jury for a redetermination of her competency.
In State v. Butler, 27 N.J. 560, 603 (1958), it was held that the trial judge has jurisdiction to conduct a preliminary inquiry to determine the competency of a witness to testify.
"The hearing may be conducted in or out of the presence of the jury in the discretion of the court. It may be desirable to take the testimony in the presence of the jury because, assuming a finding of competency to testify, ordinarily the evidence is relevant on the subject of the credibility of the witness." (at p. 604)
In the instant case the preliminary inquiry resulted in a reaffirmance by the trial judge of this deaf-mute's lack of competency to testify. Her intelligence was deemed by her teacher to be that of a seven-year-old, first-grade pupil. She was able to communicate in a limited way as to concrete subjects, but not as to abstract ideas. Defendant does not question the propriety of the trial court's ruling that she was not competent to testify.
We find no abuse or mistaken exercise of the trial judge's discretion in conducting the preliminary inquiry in the presence of the jury in this case. The determination of a lack of competency on a prior occasion does not per se preclude a finding of competency at a later date. Moreover, the same reasons which prompted the inquiry in the jury's presence at the first trial may properly exist at the second trial. If competency is found, the inquiry in the jury's presence may aid in assessing credibility. If the victim is not produced, the nonproduction may invite all kinds of speculation. For these reasons, the law wisely leaves the matter to the discretion of the trial judge. We find no reversible error as to this phase of the case.
The next argument advanced is that the trial court committed error in permitting testimony of the victim's out-of-court identification of the defendant. A brief summary of
the factual background is necessary to put this issue in proper focus.
The victim of the alleged rape was at the time thereof, December 6, 1965, a 16-year-old deaf-mute. At about 11 o'clock that night this young girl and her younger brother Jerry, six years old, were in bed in their respective bedrooms of the family apartment in Newark. Another brother Larry, 15 years old, was sitting in the living room watching television. Their mother was out at some store.
Larry testified that he heard a noise in the kitchen of the apartment and went to investigate. He saw a man standing in a small hallway of the apartment "by the kitchen." He identified that man in the courtroom at the trial as defendant. Larry testified further that the man told him that "if I hollered he was going to shoot me." He had a gun, the size of a police gun and with a white pearl handle, and pointed it at Larry. He was close enough for Larry to get a good clear look at his face. Larry was "too scared" to do other than what the man ordered him to do. In Larry's words:
"He told me turn around and he put the gun up in my back and told me to get into the front room and sit on ...