The opinion of the court was delivered by
HALPERN, J.A.D. Defendant was indicted for carnal abuse of S a 12-year-old child, in violation of N.J.S.A. 2A:138-1, and for contributing to her delinquency. N.J.S.A. 2A:96-4. The jury acquitted him of the carnal abuse charge but convicted him of contributing to her delinquency. This appeal followed.
These charges grew out of an incident which occurred on July 2, 1968 at about 10 P.M. Defendant, who was 26 years old, drove S together with William Liverman (25 years old), E (14 years old), and K (6 years old) to see his new house. The electricity had not yet been connected.
The victim testified that defendant took her into a dark living room and pushed her onto a couch, pulled down her pants and touched her leg and backside. She heard something that sounded like a zipper and as she stated it, "I felt someon my leg and I felt something between my leg and I screamed * * *." In immediate response to her scream Liverman and E, who had been in the kitchen, ran in, and the incident terminated.
Liverman testified that on hearing a scream he and E ran into the living room. He saw defendant and the victim fully clothed, sitting on the couch. The victim was trembling at the time.
E testified that on entering the living room defendant and the victim were sitting on opposite ends of the couch. The victim's outer shorts "were a little bit off," and the victim was shaking.
Defendant flatly denied the charges made against him by the victim. He denied touching or sitting on the couch with her. His version of the incident was that he had gone into the house with Liverman and did not know which girl had entered the living room. He thought the victim had screamed because she was surprised to come upon him in the living room. All the witnesses agreed that they had been in the house for only a few minutes.
N.J.S.A. 2A:96-4 provides:
Contributing to Delinquency of Child
A parent, legal guardian or person having the custody or control of a child, who by any continued negligence or willful act, encourages, causes or contributes to the child's delinquency, or any other person who by any willful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor.
The indictment charged that defendant "* * * encouraged, caused and contributed to the delinquency of a child, S, by willful acts, to wit: in the night-time he took the said S to a vacant house and exposed himself and fondled her private parts * * *."
After oral argument, we expressed our concern to counsel as to whether the conviction was sustainable under N.J.S.A. 2A:96-4, and asked them to submit briefs thereon. Their supplemental ...