97 N.J.L. 408 | N.J. | 1922
The opinion of the court was delivered hv
The defendant Was convicted of carnal abuse of a young girl under sixteen years of ago. Comp. Stat., p. 1783, § 115. The conviction is brought before us for review both on strict hill of exceptions and on certificate of the entire record of the proceedings at the trial under section 136 of the Criminal Procedure act. The assignments and causes for reversal are identical except that the latter contain a specification that the, verdict was against the weight of evidence. The other three assignments and causes are as follows: First, that evidence was admitted to show acts of
carnal abuse upon other occasions prior to that specifically charged in the indictment. The next, that the court refused to quash the indictment upon which the defendant was tried, upon the ground that there was pending a previous indictment alleging the commission of the same offence; and, lastly, that the court refused arrest of judgment when thereto moved. The motion in arrest of judgment was made upon the same ground as the motion to quash and the same considerations apply to both motions.
We take up first the objection of another indictment pending. As to this, it appears that the first indictment was found at the April term, 1921, and charged an act of carnal abuse as having been committed on the 31st of December, 1920. When this indictment was moved for trial, it immediately appeared that on the date specified in the indictment the girl was over sixteen years of age and, consequently, that there could not ba a conviction of carnal abuse thereunder. The prosecutor then moved to amend the indictment by changing the date of the offence to October 9th, 1920, and this amendment appears to have been allowed by the court. We are not directly concerned with the propriety or otherwise
On this point our conclusion is that the motions to quash and in arrest of judgment Avere properly denied. As to the motion in arrest of judgment, it may be sufficient to say that it is elementary Ieav that such a. motion can only be made upon matter apparent upon tlie face of the strict record, and that there is nothing in the present record to indicate the pendency of any former criminal proceeding for the same cause. This is apart from the merits of the point, Avhich, hoArever, Ave consider is not Avell taken. It seems to be settled law that the pendency of another indictment against the defendant for the same offence is in general no ground
The next point made is the admission of testimony to previous similar offences by the same defendant committed upon the same female. For the admission of this testimony the trial court had the authority of State v. Snover, 65 N. J. L. 289, and State v. Cannon, 72 Id. 46, which, of course, are controlling upon us and are dispositive of the point for present purposes.
Finally, it is said that the verdict was against the weight of evidence. "We have examined the evidence with care and are unable to agree with counsel that the verdict of guilty of carnal abuse under the statute was against the Weight of evidence. It may he coneeded that much of the evidence taken in the case tended to justify the conclusion that the sexual intercourse between the parties had been, from, a practical standpoint, voluntary on her part; but it must be borne in mind that the offence denounced by the statute is the unlaw
The judgment will, accordingly, be affirmed.