Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D.
Defendants Bruce Mergott and Carl Eckhart were charged in an indictment for the rape of N.M., in violation of N.J.S.A. 2A:138-1, and with assaulting M.S. with intent to kill, in violation of N.J.S.A. 2A:90-2. After a long jury trial defendants were convicted of both charges. A codefendant was convicted of rape. Defendant Mergott brought a motion for a new trial which was denied. Thereafter, both defendants were sentenced to 10 to 15-year terms on the rape convictions and to consecutive 2 to 5-year terms on the assault with intent to kill convictions. Both appealed their convictions.
At the close of the State's case, defendant Eckhart's motion for a judgment of acquittal on the charge of assault with intent to kill was denied. Defendant Eckhart renewed his motion at the close of the trial and Mergott made a similar motion; both were denied. These rulings are claimed by defendants to have been in error.
Resolution of this issue calls for a rather careful recapitulation of the evidence. This showed that at approximately 8 or 9 P.M. on August 18, 1971 M.S. and N.M. were at the New Jersey side of the George Washington Bridge hitchhiking to M.S.'s home in Wisconsin. They were picked up by a car containing defendants Mergott and Eckhart, Richard Probst (who had originally been a defendant) and Linda Huley. The people in the car offered M.S. and N.M. a place to stay for the night. They drove to a house belonging to Richard Probst's father. There M.S. and N.M. were given food and a room to sleep in. N.M. went to bed first, followed by M.S. about 30 minutes later.
From this juncture the State and defense versions of events diverge radically. Defendants claimed that N.M. told Mergott that she wanted to "ball" (i.e. , have sex) with several of the men in the house, but that she didn't want M.S. to know what was going on. The State's theory was that N.M. was repeatedly raped.
M.S. testified that at 3:00 or 3:30 in the morning he was dragged from the bed he shared with N.M. by defendants Eckhart and Mergott. His hands were forced behind his back and Eckhart poked at him with a hunting knife. Someone said, "We want the girl." He was then blindfolded and led down to the basement by Probst and Eckhart. Because of the poor blindfolding job he was able to see N.M. yanked naked from the bed.
When the men first burst into the room N.M. screamed. Eckhart told M.S. to shut her up or he would kill him. As he was being led away M.S. was repeatedly told that he wouldn't get hurt unless he tried to be a hero, but that if he did try, he'd be a dead hero. Both defendants made threats.
M.S., who was naked, having gone to bed with no clothes on, was taken to the basement, tied up and placed on the floor. He was kicked and beaten by Probst when he refused to show appreciation for the record album Probst was
playing. M.S. was told that the people in the house were all members of a motorcycle gang called the Pagans and that the Pagans would get him if he didn't watch himself.
After a time defendant Mergott came downstairs and asked "Who's next to play with the girl? Who's next to plug N.?" There was also talk from Eckhart about cutting off one of M.S.'s fingers or an ear so that he would remember not to go to the police.
After a passage of time codefendant Catalano (not an appellant here) entered. N.M., wrapped in a blanket, was then brought downstairs. In M.S.'s presence Catalano had intercourse with N.M. and then demanded that she perform fellatio on him, ...