State v. Mc Pherson
State v. Mc Pherson
Opinion of the Court
Defendant appeals from a judgment of conviction, entered on a jury verdict, finding him guilty of rape, in violation of N. J. S. A. 2A:138-1. He seeks a reversal of his conviction contending the trial judge erred in (a) denying his motion for a judgment of acquittal at the end of the State’s ease and (b) in failing to charge fornication as a lesser included offense to rape. We find no merit in either contention and affirm.
The jury could find from the uncontradicted proofs offered by the State (defendant did not testify) that during the early morning hours of June 3, 1973, defendant forced the victim, an 18-year-old female, to have sexual relations with him against her will. Briefly stated, the victim testified she cried and pleaded with defendant to take her home and hot
Viewing the State’s evidence in its entirety, and giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find defendant guilty of rape beyond a reasonable doubt. State v. Reyes, 50 N. J. 454, 458-459 (1967); State v. Fiorello, 36 N. J. 80 (1961), cert. den. 368 U. S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962). Defendant’s argument that force and lack of consent had not been established lacks substance. The victim was not duly bound to resist “to the uttermost” — the law requires that she resist as much as possible under the circumstances. State v. Terry, 89 N. J. Super. 445, 448-449 (App. Div. 1965). The jury could properly find that under the existing circumstances she acted wisely in not resisting “to the uttermost,” but nonetheless the essential elements to convict for rape had been proven. Terry, supra.
Nor did the trial judge err in failing to charge on fornication. Contrary to defendant’s contention: “[T]here need not be a jury charge with respect to an included offense unless there is a rational basis in the evidence for a finding that the defendant was not guilty of the higher offense charged but guilty of the lesser included offense.” State v.
Affirmed.
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. JAMES MC PHERSON
- Cited By
- 1 case
- Status
- Published