For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
The primary issue in this case is whether a conviction can be obtained under N.J.S.A. 2A:96-4, "Contributing to Delinquency of Child," without proof that the child has become delinquent as a result of defendant's conduct.
The defendant, James Blount, was indicted for carnal abuse of S., an 11 year old girl, in violation of N.J.S.A. 2A:138-1. He was also indicted for violating N.J.S.A. 2A:96-4 in that he "encouraged, caused and contributed to the delinquency" of the child, S., "by willful acts, to wit: in the nighttime he took [S.] to a vacant house and exposed himself and fondled her private parts." The indictments were consolidated for trial.
The evidence at the trial was as follows: On July 2, 1968, at about 10:00 P.M. Blount, 26 years old, drove S., together
with William Liverman, 25 years old, E., a 14 year old girl, and a six-year-old boy, to see a house which Blount had recently rented but had not yet occupied. The electricity had not been connected. Blount, Liverman and the girls entered the house through the back door which opened into the kitchen. The boy remained in the car. S. testified that the defendant took her by the arm and led her into a dark living room*fn1 while the others remained in the kitchen. There he pushed her down on a couch, pulled down her shorts and underpants, and felt her "backside." She heard the zipper on the defendant's pants being opened and, as she put it, "I felt something on my leg and I felt something between my leg [sic] and I screamed." Immediately thereafter E., followed by Liverman, came into the living room. Before they got there the defendant pulled up S.'s underpants and just as E. arrived, S. pulled up her shorts. E. said to the defendant, "Leave her alone" and Liverman said, "Let's go." The four then left the house and the defendant drove the girls, the boy and Liverman to their homes.
Liverman testified that after he, Blount and the girls entered the kitchen, Blount led S. into the living room. He said that a few minutes later he heard S. holler "Leave me alone or something like that." He and E. hurried into the living room and saw Blount sitting on the couch with his arm around S.S. was "trembling" at the time and on the trip home she "seemed all upset."
The foregoing testimony constituted the State's case. No evidence was presented that S. became delinquent as a result of the episode.
Called on behalf of the defendant, E. testified that while in the kitchen with Liverman she heard S. scream and that when she entered the living room the defendant and S. were sitting at opposite ends of the couch. On cross-examination
E. said S.'s outer shorts "were a little bit off" and she was "shaking." On the trip home S. continued to shake.
The defendant denied touching S. or sitting on the couch with her. He testified that he had gone into the living room alone and was standing by the window when one of the girls entered. He did not know which girl it was. He thought the girl had screamed because she was surprised to come upon him there.
Following the court's charge, to which no objection was made, the jury acquitted the defendant of carnal abuse*fn2 but convicted ...