author: Marzulli, P. J. D. C.

text:
    FRANK B. ZUPPA, PLAINTIFF, v. HERTZ CORPORATION, DEFENDANT.
    District Court Essex County
    Decided June 18, 1970.

      Mr. Ralph N. Capone for plaintiff (Messrs Giannone & Capone, attorneys).

      Mr. Edward A. Colligan for defendant (Mr. Edward Krowen, attorney).
   Marzulli, P. J. D. C.

In this action plaintiff Frank B. Zuppa seeks recovery against Hertz Corporation (Hertz) under the terms of a mandatory insurance policy, as specified in N. J. S. A. 45:21-3.

The material facts evinced during the course of the trial are not in dispute. On December 17, 1968 James Jackson entered one of Hertz’s local offices at Newark Airport, Newark, New Jersey, and requested the use of an automobile. At the time Jackson had in his possession a credit card issued by Air Travel Co. to one William B. King. Jackson filled out the application card in the name of King, and forged King’s signature, using King’s credit card.

King had no knowledge of this rental transaction by Jackson, did not consent to his impersonation, and had reported the credit card as lost or stolen as of December 7, 1968. This report was confirmed in writing by King to Air Travel Co. on December 9, 1968.

Hertz, relying on the representations as set forth in the application form and being unaware of the perpetrated fraud, furnished an automobile to Jackson. The only investigation made by Hertz before renting the automobile was to check the monthly cancellation list; no other precautionary procedures were established by the credit card company at that time. The rental agreement provided that the motor vehicle was to be returned on December 31, 1968.

Jackson did not return the automobile on the return date. On January 7, 1969 Jackson was driving the Hertz motor vehicle on Exit Road at its intersection with Port Street, Newark, New Jersey, when he proceeded through a red light and struck plaintiff’s automobile.

Thereafter plaintiff instituted suit against Hertz as owner and Jackson as operator, and recovered a judgment in the amount of $1,700 against Jackson alone. Jackson has since absconded, his whereabouts being unknown.

The nonliability of Hertz as owner was determined in favor of Hertz in the prior suit. Judge Del Tufo, presiding in that matter, determined that Jackson came into possession wrongfully, and that there was no evidence as to agency or negligence by Hertz. This ruling is consonant with our current law. Doran v. Thomsen, 74 N. J. L. 445 (Sup. Ct. 1907); Maurer v. Brown, 106 N. J. L. 284 (Sup. Ct. 1930); see also McChord, “Liability of the Bailor for the Negligence of the Bailee of Motor Vehicles,” 15 Geo. L. J. 402 (1927).

Plaintiff now seeks recovery against Hertz as self-insurer. Under our Compulsory Motor Vehicle Insurance Act, every owner of rented and leased motor vehicles must either file with the clerk of the municipality a copy of a motor vehicle insurance policy, N. J. S. A. 45:21-2, or, where the assets of the owner are sufficient, as in the present case, become a self-insurer pursuant to N. J. S. A. 45:21-8. The statute also provides the terms and provisions of such insurance, N. J. S. A. 45:21-3; these terms and provisions are mandatory and may not be avoided. Cf. Saffore v. Atlantic Casually Ins. Co., 21 N. J. 300 (1956).

The question for this court to determine is whether Jackson was insured by Hertz at the time of the accident under N. J. S. A. 45:21-3; i. e, whether Jackson was a “bailee” within the meaning and intent of the statute. N. J. S. A. 45:21-3 provides in pertinent part:

Such policy of insurance * * * shall provide for the payment * * * of any final judgment recovered by any person on account of ownership, maintenance and use of such motor vehicle by either the owner or the lessee or bailee, his agent or servant, or any fault in respect thereto, and shall be for the benefit of any person suffering loss, damage or injury as aforesaid. [Emphasis added]

Plaintiff argues that this statute (and by analogy, its counterpart under the Motor Vehicle Financial Responsibility Law, N. J. S. A. 39:6-23 et seq.) represents legislative adoption of a public policy looking toward the collectability of damages. He maintains that the word bailment should be broadly and liberally construed so as to effectuate coverage for the benefit of innocent third parties. He further argues that since the contract for hire was induced by a misrepresentation as to the identity of the person, commonly known as fraud in the inducement, the contract for hire was only-voidable. He continues this argument by saying that the insurer may not now, on the ground of fraud or misrepresentation relating to the inception of the contract, retrospectively avoid coverage so as to escape liability to the claimant. These arguments are unpersuasive.

It is commonly stated that in the absence of a legislative intent to the contrary, legal terms in a statute are presumed to have been used in their legal sense. N. J. S. A. 1:1-1; see also River Development Corp. v Liberty Corp., 45 N. J. Super. 445 (Ch. Div. 1957), aff’d 51 N. J. Super. 447 (App. Div. 1958), aff’d 29 N. J. 239 (1959).

Except in the case of r/misi-bailments, a bailment is essentially a consensual transaction. Lawful possession of the property is generally admitted to be one of the requisites of a bailment. It is correctly defined as the rightful possession of goods by one who is not the owner. 9 Williston, Contracts (3 ed. 1967), § 1030 at 875; State v. Carr, 118 N. J. L. 233 (E. & A. 1937). This is commonly expressed by saying that a bailment requires delivery. Gilson v. Pennsylvania R. R. Co., 86 N. J. L. 446 (Sup. Ct. 1914), aff’d 87 N. J. L. 690 (E. & A. 1915). It is the element of lawful possession, however created, and the duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based upon contract in the ordinary sense or not. Laidlaw, “Principles of Bailments,” 16 Cornell L. Q. 286 (1931). A bailment cannot be built upon fraud but must be predicated upon a lawful transaction voluntarily entered into by both parties. State v. Carr, supra; see also 8 Am. Jur. 2d, Bailments, § 48, at 954 (1963), 8 C. J. S. Bailments § 17, at 367 (1962).

Jackson’s actions, which amount to a conversion, see generally Prosser, Torts (3 ed. 1964), § 15, at 84; 1 Harper & James, The Law of Torts, § 2.16, at 142 (1956); see also 8 Am. Jur. 2d, Bailments, § 48, at 954 (1963), also constitute a criminal offense for which he was tried and convicted. It cannot be said, therefore, that the transaction perpetrated by Jackson amounted to a bailment within the contemplation and intent of our Legislature when it enacted our Compulsory Motor Vehicle Insurance Act. It would be quite a different result if our Legislature imposed direct and absolute liability on the owner of the rented motor vehicles. See Schimek v. Gibb Truck Rental Agency, supra.

Moreover, analogous cases in other states rule against recovery in like situations. Gallopin v. Continental Cas. Co., 290 Ill. App. 8, 7 N. E. 2d 771 (App. Ct. 1937); Potts v. Farmers’ Mut. Automobile Ins. Co., 233 Wis. 313, 289 N. W. 606 (Sup. Ct. 1940); see also, 7 Appleman, Insurance Law & Practice, § 4453, at 489 (1962); 6 Blashfield, Cyclopedia of Automobile Law and Practice, § 3945, at 626-628 (1945); 12 Couch, Insurance (2 ed. 1964), § 45:115-6, at 186-187; but cf. General Cas. & Sur. Co., v. Stevens, 41 Ohio App. 581, 180 N. E. 271 (Ct. App. 1931).

Nor can it be successfully argued by analogy that an insurer, given similar facts as in the instant case, would have been unable to avoid liability under our Motor Vehicle Security Responsibility Law. N. J. S. A. 39:6-23 et seq. As stated by our Supreme Court in Small v. Schuncke, 42 N. J. 407 (1964):

* * * we hold that Weidel [named insured] gave Wagner [nephew] permission to “use” the car when he entrusted the latter with possession and requested that he operate the car to perform the various errands. Accordingly, Wagner and Schuncke [driver] are additionally insureds * * * unless their use of the car at the time of the accident constituted “theft or the Klee.” [at 414-415; emphasis added]

In conclusion, it is clear that the plain design of Ar. J. S. A. 45:21-1 et seq. is to provide insurance coverage for the benefit of any person (with certain exceptions not relevant here) who suffers injuries or sustains property damage as a result of liability imposed by law on the bailor of a hired motor vehicle or a bailee, or his agent or servant, and that. the statute does not purport to make available to a judgment creditor the proceeds of a liability policy unless the judgment debtor falls within the definition of one assured under the terms provided therein. To hold otherwise would be to force the insurance company to insure a thief.

Accordingly, judgment is for defendant.


source: Caselaw Access Project

author: Labrecque, J. A. D.

license: Public Domain

text:
    LAWRENCE M. STEWARD, PLAINTIFF-RESPONDENT, v. ESSO STANDARD OIL COMPANY, a/k/a HUMBLE OIL & REFINING CO. AND HUMBLE OIL & REFINING COMPANY, DEFENDANTS-APPELLANTS, AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1970; Supplemental Memoranda

    Filed June 16, 19 and 22, 1970
    Decided August 6, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Maurice B. McLaughlin argued the cause for appellants (Messrs. Galvin, French & McLaughlin, attorneys).

      Mr. Samuel Jacobs argued the cause for plaintiff-respondent.

      Mr. Luke A. Kiernan, Jr. filed a statement in lieu of brief and, by leave of the court, a letter memorandum on behalf of respondent Public Service Electric and Gas Company.

      With the coming down of the opinions of the Supreme Court in Black v. Public Service Elec. & Gas Co., 56 N. J. 63 (1970) and Gallas v. Public Service Electric and Gas Co., 56 N. J. 101 (1970) the application of appellant to file a supplemental brief was granted and respondents were given leave to reply thereto.

   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant and third party plaintiff Humble Oil and Refining Company (Humble); successor by merger to Esso Standard Oil Company, appeal from an adverse judgment for $35,000 in favor of plaintiff Steward and from denial of its motion for a new trial.

On June 4, 1965 Steward was a welder employed by O. C. Francis Co., Inc., an independent contractor engaged by Humble to lay a six-inch pipe line on its property which bordered on 22nd Street, Bayonne. Humble’s property contained four or five acres and was separated from 22nd Street by a steel fence six feet eight inches high. Beyond the fence, defendant and third party defendant Public Service Electric and Gas Company (Public Service) maintained, parallel to the fence and ten feet from it, a line of poles supporting an electric transmission line carrying 15,250 volts. In the area where the accident occurred - the wires hang on crossarms, the nearest wire being six feet beyond the vertical line of the fence and 37 feet from the ground.

The pipe line was intended to carry steam to a new plant. It was being installed inside the fence and three feet away from it. A crane was being used to place the sections of pipe in position on concrete pipe supports 30 inches high, after which the pipes would be fitted and welded together by Steward and his co-workers.

The crane was mounted on a truck, had a 55-foot boom and was positioned approximately 47 feet from the fence at the time of the accident. There was no signalman detailed to work with Bond, the crane operator, and the crane was not grounded. Bond testified that he was familiar with the six-foot clearance requirement of the High Voltage Act, N. J. S. A. 34:6-47.2 and 3 and with Humble’s (Esso’s) safety regulations which extended this prohibition to ten feet. As required by N. J. S. A. 34:6-47.4 there was a notice posted in the cab of the crane reading, “Warning Unlawful To Operate This Equipment Within 6 Feet of High-Voltage Lines.”

The accident occurred as Bond was in the act of picking up a length of pipe to be placed where it was to be welded into the steam line by Steward. In the absence of a signalman, Steward had signaled Bond to pick up the pipe, but it had shifted. He then signaled Bond to swing over and pick it up again. As Bond attempted to do so, the cable on the crane “drifted out” and made contact with the overhead wire causing Steward, who was holding on to the hook at the end of the cable, to sustain a severe electrical shock.

The day of the accident was the first day that Steward had worked in this particular area of Humble’s plant. In his pretrial deposition, which was read into the record, he testified he had not noticed the electric wires prior to the accident.

Steward also testified that daily work permits were issued by Humble’s engineer to Francis before it started work in an area. These were of two types, “cold permits” and “hot permits.” Usually, before a hot permit was issued Humble’s engineer would test for gas fumes and generally check the area. There was evidence that Knight, Humble’s engineer, had issued Erancis a hot permit on the day Steward was injured, as well as on the two prior days. Erancis’ foreman, Kutscher, testified that Knight’s examination had included the overhead wires. Knight was never called as a witness to contradict this testimony.

Bond admitted that he was “probably familiar” with the fact that Humble’s safety regulations provided that “where it is absolutely necessary to operate closer than 10 feet, special permission must be secured from the field engineer and arrangements made to cover or deenergize the circuit,” but didn’t think of it at the time.

The pieces of steel pipe being handled by the crane were approximately 40 feet in length and six inches in inside diameter. The crane was equipped with a steel cable which had a weighted ball and a hook at its end. To this hook Steward would attach a “cable sling” which was used to hold the pipe while it was being lifted from the ground and .placed on the supports.

At the close of plaintiff’s case both Humble and Public Service rested without calling any witnesses. The trial judge thereupon granted an involuntary dismissal as to Public Service and permitted the case to go to the jury as to Humble. Eollowing the verdict in favor of plaintiff, Humble’s motion for judgment n.o.v. or for a new trial was denied. It thereupon appealed from the judgment in favor of plaintiff, and from the order denying its motion for judgment n.o.v. or for a new trial. Néither plaintiff, nor Humble, appealed from the dismissal as to Public Service.

In substance, Humble’s brief raises two points: (1) it owed no duty to plaintiff with respect to the high tension line and (2) plaintiff was guilty of contributory negligence as a matter of law.

We are here concerned only with the high tension power line, a fixed permanent structure which, the jury impliedly found, posed a hazard to Steward and his fellow workers, as they were engaged in laying the pipe on Humble’s property. No point is made by plaintiff of the fact that Humble may have been the owner, subject to the public easement, of the fee of the land on which the power line was erected.

An employee of an independent contractor, such as was Steward, who is engaged in work on the premises of an owner, who has contracted with his employer for the work he is doing, is an invitee of the owner. Beck v. Monmouth Lumber Co., 137 N. J. L. 268 (E. & A. 1947). As to him the owner is duty bound to exercise reasonable care to maintain the premises, where the work is to be done, in a reasonably safe condition. Piro v. Public Service Electric & Gas Co., 103 N. J. Super. 456, 463 (App. Div. 1968), aff’d 53 N. J. 7 (1968); Gallas v. Public Service Electric and Gas Co., 106 N. J. Super. 527, 541 (App. Div. 1969), rev’d on other grounds 56 N. J. 101 (1970).

It would appear clear that, had the high tension line been located on Humble’s property, the jury could well have concluded that reasonable circumspection and foresight required that it take reasonable precautions to prevent injury to Steward by reason of the proximity of the power line. Gallas v. Public Service Electric and Gas Co., supra, 106 N. J. Super, at 542. However, the main thrust of Humble’s argument is that its duty as a landowner was limited to hazards existing on its premises, and did not extend to potential hazards to those working on its premises, arising from dangerous conditions existing beyond its property line.

Among factors to be considered in determining whether an owner has exercised reasonable care for the safety of the employees of a subcontractor are the nature and extent of the contemplated work, the nature of the reasonably foreseeable hazards, and the means available to cope with or guard against them. Here it is clear that the doing of the work which Steward’s employer had contracted to perform would require considerable “elbow room.” Essentially, it required the lifting, moving and placing of 40-foot sections of steel pipe by the use of a crane which was 12 feet high and equipped with a boom 55 feet long. Thus, it was reasonably foreseeable that the boom itself, when the crane was operated in the area of the fence, might accidentally he brought into contact with the power line. In the actual placing of the pipes it was necessary that they rest on supports which were but three feet from the fence and nine feet in a vertical line from the nearest electric wire. The jury could have found from the testimony that the placing of the pipes could not have been done -without raising the boom into the air to a height which approximated that of the wires.

Even if the boom were never moved beyond a point directly above the intended location of the pipe line, a suspended section of pipe could, unless restrained, turn on its own vertical axis. This would cause the pipe to project beyond the fence line into the street to a maximum distance of close to 17 feet (one half of the pipe length, 20 feet, less three feet, the distance to the fence). Further, unless the pipes were stored immediately adjacent to the fence, movement to their eventual location necessitated that the boom be swung towards the fence — and the high tension line — in which case the suspended cable could reasonably be expected to swing beyond the end of the boom, after motion of the boom had been stopped. Thus, it was not beyond the realm of foreseeability that in the handling of the crane, the boom or the cable might swing and accidentally contact, or draw an arc from, the nearest wire of the high tension line. Some confirmation of this is found in the testimony that Knight, Humble’s engineer, had not only checked the conditions on the property, but also the electric wires, before issuing the permit which authorized the work to proceed.

Counsel for Humble argues that there is no New Jersey precedent for holding it liable for conditions beyond its own property. However, it cites no precedent to the contrary. The cases on which it relies, Marion v. Public Service Elec. & Gas Co., 72 N. J. Super. 146 (App. Div. 1962); Manning v. Public Service Elec. & Gas Co., 58 N. J. Super. 386 (App. Div. 1959); Zentz v. Toop, 92 N. J. Super. 105 (App. Div. 1966), aff’d 50 N. J. 250 (1967); Walsh, et al. v. Madison Park Properties, Ltd., 102 N. J. Super. 134 (App. Div. 1968), and Rodrigues v. Elizabethtown Gas Co., 104 N. J. Super. 436 (App. Div. 1969), are clearly inapposite. Because most of them involved hazards which had their situs on the owner’s property, is not to say that all hazards which affect the safety of the work area must be located on the property. See 35 Am. Jur., Master and Servant, § 186 (1941); cf. Burns v. Del. & Atl. Telegraph Co., 70 N. J. L. 745 (E. & A. 1904). Further, Manning v. Public Service Elec. & Gas Co., supra, was rejected as a precedent in Black v. Public Service Elec. & Gas Co., 56 N. J. 63, 79 (1970).

The answer to Humble’s argument is that it is not being held liable for the danger presented by the high tension line per se, but for the dangerous condition of the area in which, under its contract with Francis, Steward and the crane operator were required to work. The jury by its verdict did no more than find that Humble had failed to exercise reasonable care to see that the work area was reasonably safe for the doing of work which, it was reasonably foreseeable, included, in the manner in which it would normally be performed, the risk of contact with the high tension line.

Eeason and logic point to the conclusion that if the work area is made unsafe by the proximity of wires carrying a lethal charge of electricity, it should make no difference whether those wires are on the owner’s property, or so close thereto as to interfere with the doing of the work in a normal manner. The gist of the owner’s liability is the fact that the employee is being required to work too close to a hazard of which the owner knows, or should have knowledge. Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S. W. 577, 45 L. R. A. (N. S.) 295, 301-302 (Sup. Ct. 1904). This is so even though what would constitute reasonable care under the circumstances might well depend upon whether the wires were subject to control by the landowner, or whether they were off the premises and in the sole control of the power company. In the former case the jury could have found that reasonable care required that the power be shut off or the wires protected, whereas, in the latter case, which was the situation here, it could have found, inter alia, that Humble’s obligation was satisfied if it had given notice to Public Service of the work being carried on by Francis and had notified Francis’ employees of the risk posed by the presence of the wires.

It follows that the issue of Humble’s liability was properly submitted to the jury. 35 Am. Jur., Master and Servant, op. cit., supra, at 614; 56 C. J. S. Master and Servant § 301 (1948); Clark v. Union Iron & Foundry Co., supra.

Humble’s argument that Steward was guilty of contributory negligence as a matter of law is predicated upon the fact that he, an experienced employee, had reached for the cable and given the signal to the crane operator which initiated the movement of the boom, which eventually resulted in contact with the wire. We find it to be lacking in substance. Whether he was in the exercise of reasonable care was an issue for the jury’s consideration. Gudnestad v. Seaboard Coal Dock Co., 15 N. J. 210, 222 (1954). He testified he had never worked in that particular area before and was not aware of the presence of the high tension wires. At the time he gave the signal the sun was in his eyes so that he could not see them. There was no proof that the pipe could not be picked up without contacting the wires. Actually, even if he could have seen the wires, the jury could have determined that he was justified, by reason of the work permit issued by Knight, Humble’s engineer, in assuming that the wires were not dangerous. We find Shaw v. Calgon, Inc., 35 N. J. Super. 319 (App. Div. 1955) and Ferrie v. D’Arc, 55 N. J. Super. 65 (App. Div. 1959), rev’d 31 N. J. 92 (1959); Bianchi v. South Park Presbyterian Church, 123 N. J. L. 325 (E. & A. 1939) and Pearlstein v. Leeds, 52 N. J. Super. 450 (App. Div. 1958), certif. den. 29 N. J. 354 (1959), on which Humble relies, to be inapposite.

"We have reviewed the remaining points raised and find them to be without merit. Denial of the motion for a new trial did not amount to a mistaken exercise of the trial court’s discretion. On the contrary, the proofs adequately support the jury’s verdict. Dolson v. Anastasia, 55 N. J. 2 (1969).

In its letter memorandum, Humble urges, relying upon Gallas v. Public Service Electric and Gas Co., supra, and Black v. Public Service Elec. & Gas Co., supra, that, as an alternative to the entry of judgment in its favor, there should be a reversal of the judgment against it, and a new trial as to both defendants. In the absence of: a timely appeal from the judgment in favor of Public Service, we are without jurisdiction to grant Humble the relief it seeks. Its notice of appeal may not be construed as embracing the dismissal of its third party complaint against Public Service, It did not oppose the granting of the motion to dismiss as to Public Service. In its original brief it specifically disclaimed any intention of appealing from that action. We are not called upon to determine whether, as a third party plaintiff, it would be entitled to relief under R. 4:50.

Affirmed.

      Plaintiff Lawrence M. Steward died prior to the trial of the case from causes unrelated to the accident. The judgment was returned in favor of his administratrix, Irene Steward.


author: Kolovsky, J. Á. D. Conford, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND A. GINARDI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 22, 1970
    Decided August 7, 1970.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Edward F. Kent, of the New Jersey bar, and Mr. Gerald L. Shargel, of the New York bar, admitted pro hac vice, argued the cause for appellant (Mr. Stanley C. Tan Ness, Public Defender, attorney).

      Mr. Wilbur H. Mathesius, First Assistant Prosecutor, argued the cause for respondent (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney; Mr. Lawrence E. Miller, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Kolovsky, J. Á. D.

Defendant was found guilty on all counts at a consolidated jury trial of four indictments charging that on May 15, 1967 he had, while armed with a pistol, (1) kidnapped and (2) raped Susan -, and (3) kidnapped and (4) attempted to rape Elaine ——. Two briefs have been filed on his behalf on his appeal from the judgments of conviction. One submitted by the Public Defender argues seven points for reversal; the other, a supplemental brief filed pro se, but coneededly prepared by the member of the New York bar who was permitted to join in the oral argument before us, presents three additional contentions in support of the appeal.

We have reviewed the lengthy record of the trial and the arguments presented and find no basis for reversal.

The crucial factual dispute at the trial involved the identity of the offender — whether, as the State charged, it was the defendant. That the offenses described in the indictments had in fact been committed was essentially uneontradicted. The only criticism at the trial of the evidence of the elements of the offenses concerned the adequacy of the proofs as to “penetration,” an essential element of the rape charge, and as to this the evidence was sufficient to support the jury’s verdict.

In essence the State’s proofs as to the offenses, as distinguished from its proofs as to the identity of the offender, showed that at about 9 p.m. on May 15, 1967, as Elaine was leaving Susan’s automobile which had been parked briefly in front of Elaine’s home in Hamilton Township, near Trenton, a man, identified by the girls as the defendant, approached with a gun in his hand, ordered Elaine back, into the front seat of the auto, pushed his way into the back seat and told Susan to drive off.

Elaine testified that as they were riding she offered the intruder whatever money they had, to which he replied that that was not what he wanted, that “he intended to rape both of us.” He then ordered her to get undressed. Hnder threat of physical violence and after repeated refusals, Elaine removed her undergarments, climbed over the front seat into the back seat with the attacker, was subjected to having her “private areas” touched by this man, had the man move between her legs, but at no time “did the private parts of his body touch the private parts of [her] body.” Elaine added that her attacker was brandishing his gun all the while.

The car eventually came to a stop. Elaine climbed back into the front seat and was allowed to put her raincoat on. Susan was told to get undressed and get into the back seat and Elaine was ordered to drive and she did.

Susan corroborated most of Elaine’s testimony. She testified that when she got into the back seat of the car she was forced to have intercourse with her attacker, that she was penetrated, but that the penetration lasted only a matter of seconds because she picked up a can of De-Icer and hit her attacker in the face with it.

Sometime later each of the girls was forced to show the attacker some identification, at which point he threatened that “they would pay” if they reported the incident to the police. He then got out of the car, only one block from Elaine’s home, and walked away. An hour and a half had elapsed since the attacker had first appeared.

We treat first with the contentions advanced on appeal which do not relate to the issue of identification.

Defendant argues that his motion at the end of the State’s case to dismiss the two kidnapping indictments should have been granted because ho contends there was but one criminal transaction, “the carrying away was an incident of rape and attempted rape”; “the kidnapping charged here was part of a continuous course of conduct which had as its sole aim the accomplishment of rape and attempted rape.”

Defendant recognizes that we have heretofore ruled “that rape and kidnapping are separate crimes even when the kidnapping is for the purpose of the rape.” State v. Johnson, 67 N. J. Super. 414, 418 (App. Div. 1961); see also, State v. Dunlap, 61 N. J. Super. 582, cert. den. 368 U. S. 903, 82 S. Ct. 181, 7 L. Ed. 2d 97 (1961).

He argues, however, that the rule should be changed and that we should substitute therefor the “modern” interpretation of kidnapping statutes adopted by the California court in People v. Daniels, 80 Cal. Rptr. 897, 459 P. 2d 225 (Sup. Ct. 1969), and by the New York court in People v. Levy, 15 N. Y. 2d 159, 256 N. Y. S. 2d 793, 204 N. E. 2d 842 (Ct. App. 1965), and People v. Lombardi, 20 N. Y. 2d 266, 282 N. Y. S. 2d 519, 229 N. E. 2d 206 (Ct. App. 1967).

The present California rule was stated in People v. Daniels, supra

The rule of construction declared in People v. Chessman (1951) supra, 38 Cal. 2d 166, 192, 238 P. 2d 1001, 1017, i. e., that “It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state,” is no longer to be followed. Rather, we hold that the intent of the Legislature in amending Penal Code, section 209 in 1951 was to exclude from its reach not only “standstill” robberies (e.g., People v. Knowles (1950) supra, 35 Cal. 2d 175, 217 P. 2d 1) but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. [80 Cal. Rptr., at 910, 459 P. 2d, at 238]

It is immediately evident that the quoted rule is inapplicable to the factual circumstances of this case, which involved not “brief movements” of the victims but asportation of the victims for substantial distances during a period of 1^2 hours, during all of which time the victims faced the threat of the pistol in the assailant’s hands.

The New York court itself has recently observed in People v. Miles, 23 N. Y. 2d 527, 297 N. Y. S. 2d 913, 245 N. E. 2d 688 (1969), cert. denied 395 U. S. 948, 89 S. Ct. 2028, 23 L. Ed. 2d 467 (1969):

In short, the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge “true” kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime. [297 N. Y. S. 2d 922, 245 N. E. 2d 695]

There is therefore no reason for us in this ease to undertake an evaluation of the rule adopted by the California and New York courts. (It may be noted that the Supreme Courts of Delaware, Minnesota and Kansas have found the reasoning of the New York court in People v. Levy, supra, to be unpersuasive. See Samuels v. State, 253 A. 2d 201, 203-204 (Del. Sup. Ct. 1969); State v. Morris, 281 Minn. 119, 160 N. W. 2d 715, 717-718 (Minn. Sup. Ct. 1968); State v. Ayers, 198 Kan. 467, 426 P. 2d 21, 24-25 (Sup. Ct. 1967)).

Defendant also argues that there was error in five aspects of the court’s charge although no question was raised in the trial court with respect to the first two items to be mentioned. Suffice it to say that we are satisfied that there is no justification for the criticisms directed to the instructions given by the court with respect to (1) the elements of the crime of kidnapping, (2) the evaluation of the identification testimony, and (3) defendant’s alibi.

Further (4) the trial judge did not abuse his conceded discretion, State v. Wesler, 137 N. J. L. 311, 316-317 (Sup. Ct. 1948), aff’d o.b. 1 N. J. 58 (1948), in deciding not to charge the maxim "falsus in uno, falsus in omnibus." Finally (5) the court acted properly in denying defendant’s request that it charge the so-called “equipoise” rule. The court’s charge embodied the proper test to be applied in weighing evidence in a criminal case to determine if guilt exists, “whether it is sufficient to generate a belief of guilt beyond a reasonable doubt.” State v. Ray, 43 N. J. 19, 31 (1964); State v. Fiorello, 36 N. J. 80, 87-88 (1961).

We find no prejudicial error in the method adopted by the court in furnishing the jury with the information sought by the question propounded by it during the course of its deliberations. Nor was any prejudice suffered by defendant from the court’s ruling on the objection made by defendant during the prosecutor’s summation.

Defendant’s motion, made prior to the selection of the jury, that “all witnesses, whether they be State or defense, with the exception of expert witnesses be excluded from the courtroom,” was granted, but then when the court ruled that this included such members of defendant’s family as would appear as witnesses, defendant withdrew his motion, reserving the right to renew it during the trial. The motion was not renewed. There is no substance in the contention now advanced that it was improper for the court to rule, before defendant withdrew his motion, that the sequestration order would apply to defendant’s wife and mother, as well as to the other prospective witnesses in the case.

We turn now to the issues raised relating to the proofs as to the identity of the offender.

A description of their attacker given by the girls to the police late on the night of May 15 or in the early hours of May 16 included a description not only of his physical features, his clothes and appearance — e. g., Elaine told the police that their attacker “was very sloppily dressed and dirty and he smelled like grease or oil, it was a dirty kind of smell” — but also of the pistol he carried and the dark-colored skull cap with strings hanging down the side and the gloves he was wearing. But Elaine, when asked by the police about 3 a.m. on May 16 whether she thought she could identify the assailant if he were apprehended, answered, “l am doubtful.” Later on the 16th, Detective Lieutenant Keegan and Detective Mohr of Hamilton Township had the girls look at a number of rogues’ gallery photographs. No identification was made.

On the evening of May 17 the detectives took the two girls to police headquarters in Middletown Township, Pennsylvania. Since late 1962 that police department had among its equipment an item known as an “Identi-Kit.” One of its police officers, Norbert Banach, was trained to use it and had used it “many times.” The “Identi-Kit” is used by police departments as an aid to the preparation of a sketch of a subject based on an eyewitness’ description. See 20 American Jurisprudence, Proof of Facts, at 551 (1968) :

Probably the most useful aid, and the one in widest use, is an invention called Identi-Kit. The kit consista of hundreds of transparent celluloid overlays on which are printed variations of the human features : hairline, nose, eyes, chin contour, mouth, etc. The eyewitness is asked to select the set that most closely resembles the subject; the overlays are assembled to form a complete facial sketch. Iflach overlay is numbered so that the sketch will show a row of numbers that can be transmitted by wire or telephone, enabling a distant police department to duplicate the sketch in minutes. Speed is in fact the outstanding asse.r of Identi-Kit; a trained operator can form the sketch in two or three minutes as opposed to the hours it requires an artist to draw one.
Identi-Kit was developed after long study of the principles of physiognomy and comparisons of hundreds of thousands of photographs of arrested persons. It is claimed that, because of consistencies in the human structure, a likeness of a subject can be constructed on the basis of only four known factors: his approximate age, weight, and height, and the one of 49 (lifEerent hairlines that is closest to his own. Tiras even a face mask will not prevent a rendition.

Banach testified for the State and with the Identi-Kit before him described it and explained and demonstrated the manner of its use to the jury, saying among other things:

You ask the people certain individual questions on size, height, weight and any special features they remember about a person’s face and then with that, you put a group of slides together t,o come out with a likeness similar to what they want and from that changes are made, if they don’t like the eyes or they don’t like the nose, they’re changed until they agree on the individual slides.

He then described the separate sessions he had had with Susan and Elaine on the evening of May 17. The first girl (identified by other witnesses as Susan) finally selected slides from six categories — chin, eyebrows, lips, nose, eyes and hair. The finished composite was approved by the girl before the interview ended; according to Susan’s trial testimony, she was then satisfied that “it depicted the man that entered my car on May the 15th.”

Banach recorded the numbers of the overlays and then restored them to the kit. The second girl (Elaine) was called in. The same procedures were followed. She was able to select only from five categories, “she could not give me a hair slide.” She expressed approval of the completed plastic composite. Banach testified that the “similarity” between the slides she selected and' those the first girl had selected “was surprisingly close.”

The next day Banach reconstructed the composite approved by the first girl from the recorded numbers of the overlays and made two sketches thereof, adding to one of them a cap of the description given him by the second girl. On the following day, May 19, Banach gave the two sketches and a photograph of each to the Hamilton Township detectives. They, in turn, made Yerifax copies thereof and distributed them to members of their police department and to neighboring police departments.

On the following Monday evening, May 22, 1967, Keegan was in charge of a “special shift” of ten police officers in five police autos, two of them unmarked, engaged in patrolling the section of Hamilton Township which adjoined Lalor Avenue, a boundary street between the Township and the City of Trenton. (The reason for the special assignment was kept from the jury; the colloquy in the absence of the jury indicated that there had been a series of crimes in the area similar to those here involved.)

At about 8:45 p.m., Keegan, who was in an unmarked car with Detective Mohr and the police commissioner, noticed an auto with its only occupant the driver, a “man [who] was a striking likeness of the sketch we carried.” Keegan said the police followed the auto through several streets of the Lalor tract and then ordered it to stop. Detective Mohr identified himself to the driver as a police officer. Mohr testified that as the driver produced his driving license, he, Mohr, noticed the butt portion of a gun sticking up between the front seats of the anto and, “on the right front-seat, the passenger seat * * * a bine cloth helmet and a pair of tan gloves.” The driver was ordered out and placed under arrest.

Keegan then approached the auto and in his trial testimony said that the butt of the pistol was “in plain view” between the driver’s bucket seat and the console, and that “on the passenger’s seat was like a motorcycle helmet liner, like an old fashioned aviator’s hat with straps and a pair of gloves and a couple small screwdrivers.”

Defendant was taken first to police headquarters in Trenton, the municipality in which he had been arrested, and booked on a complaint for carrying the pistol. lie was then taken to police headquarters in Hamilton Township and booked there. Later that night a lineup was held consisting of defendant and four police officers in plain clothes. (Insofar as pertinent to the arguments advanced, the details of the lineup will be referred to later.) Susan and Elaine were brought to police headquarters and, at separate viewings of the lineup through a one-way mirror, they each identified defendant as the attacker.

At the trial both Elaine and Susan made in-court identifications of defendant. Elaine was “absolutely positive” that “defendant is the individual who forced his way into [her] ear.” Susan had “no doubt at all that he was the man.” In addition, each identified the composites and confirmed her separate pretrial identifications of the composites and of defendant in person at the lineup. As for the gun, helmet and gloves found in defendant’s auto when he was arrested: to Susan, the gun looked “exactly like the gun” carried by the attacker, to Elaine it looked “similar”; to Susan, the helmet and the gloves were “similar” to those worn by Mm, to Elaine, the helmet looked “very similar,” the gloves “similar.”

Before the end of the State’s case the gun, hat and gloves were admitted into evidence, defendant admitting that those items had been found in his auto. Also admitted into evidence, over defendant’s objection, were the sketches of the composite prepared by Banach and photographs of each.

Defendant vehemently denied that it was he who had attacked the girls. He testified, and he was supported by the testimony of his wife, his mother, his mother-in-law and sister-in-law, that he was at home during the entire evening of May 15; that his wife had taken the family ear to go bowling and that when she returned home between 11:15 and 11:30 p.m. she combed out her mother’s hair and then Mr. and Mrs. Ginardi had driven Mrs. Ginardi’s mother to the home of another daughter; that while at home, at about 10 p.m., defendant’s sister-in-law had telephoned and had spoken to him; and that sometime between 10 to 10:30 p.m., Mr. Ginardi’s mother had telephoned him from Pittsburgh to inquire about his trip back from Pittsburgh the previous day.

In rebuttal of this alibi evidence, the State offered the testimony of: a next-door neighbor who testified that she had heard the Ginardi auto drive out of their driveway at about 8:30 p.m. on May 15 and that thereafter the Ginardi house was dark except for the outside porch light, the lights outside and inside the garage and perhaps one in the kitchen; and a member of Mrs. Ginardi’s bowling team who testified that on May 15 defendant had driven her and his wife to the bowling alley, had left them there and that another member of the team (who also so testified) had driven Mrs. Ginardi home after they had first stopped at a diner until about 12:15 a.m. on May 16.

Defendant denied that he ever wore greasy, oily or smelly clothes, asserting that his job involved “fairly clean work.” In this aspect he was corroborated by members of his family, and in an attempt to introduce further corroboration thereof he overruled his attorney’s reluctance and insisted on the following questions being asked on cross-examination of one of the members of his wife’s bowling team:

Q. Now, on that niglit do you recall if Raymond was dirty or greasy or oily or smelled of dirt, grease or grime? A. No, I don’t.
Q. Did he or didn’t he? A. T don’t remember.
Q. To your knowledge did be ever smell like that or wasn’t he usually clean? A. He was usually clean.

Defendant also attacked the suggestion that the composite sketch or picture resembled him. At the request of his attorney he donned the helmet liner while the jurors compared his appearance with that of the sketch which was being passed among them. So, too, the jury was asked by the attorney to compare defendant’s nose with a sketch, which defense counsel had drawn during Banach’s cross-examination, of the nose which, according to Banach, the second girl had selected. The alleged lack of resemblance between the composites and defendant was stressed in defense counsel’s closing statement to the jury.

It is of interest to note that in even stronger terms the same argument was advanced by defendant’s attorney in support of his unsuccessful motion for dismissal at the end of the State’s case. Ho told the trial judge that the jury could not reasonably find from the evidence that the charges had been proven, saying, among other things:

More specifically, first of all, with regard to the identification of the defendant. You recall the testimony of several of the police detectives and that of the two complaining witnesses was that the composite sketch accurately depicted the man who attacked them. It was prepared a reasonable time after the attack, presumably while tlie identification features of the assailant’s face and appearance were fresh in their minds. Í would submit, your honor, that inasmuch as it has been represented to the trier of the facts that this composite sketch does accurately reflect the face of the attacker, that your honor could find as a matter of law that there is no resemblance between the composite sketch and my client, that there is such a disparity in api>earance the matter should not be given to the jury because twelve reasonable men could not disagree.
Therefore, I would ask with regard to the composite sketch, since the identification of the defendant admittedly is one of the key issues in the case, is based in large part on the sketch and that yonr honor has the right and power to determine as a matter of law that there is no resemblance and that the jury would so find, that to send it to a jury would be an empty task.

Defendant’s testimony of his activities on May 22, 1967 just prior to his being stopped by the police, as well as of what thereafter transpired, differed sharply from the testimony which had been given by the police witnesses. He denied that he had driven through the Lalor tract and said that when he was stopped he was on his way to a bowling alley after dropping his wife at another alley at which his wife’s team was to bowl. The police searched his auto over his objection; the seized items were not in plain view; the helmet liner and the screwdrivers were underneath the passenger seat, and the pellet pistol was out of sight, pushed to the floor between the driver’s seat and the console.

According to defendant, the pistol was an air pellet pistol which he used as a target pistol and was in the car because that afternoon he had taken his dog, the pistol and some pellets and fired at some tin cans and kettles in a field at the Bordentown Military Academy. The gloves and the helmet liner had been given to him by his employer; similar equipment was used by employees of many other industries in the area.

Defendant also disputed the State’s version of the several events, including the lineup, which followed his arrest.

Defendant does not now contend that the jury’s determination that he was the attacker lacks adequate support in the proofs which we have summarized at some length. Rather, he contends that the governing law mandated the exclusion of critical parts of those proofs, specifically (1) the testimony as to the lineup identifications and (2) the composite sketches, and that their admission into evidence constituted reversible error.

Defendant contends that “judged by the totality of the circumstances the out-of-court identification procedures [the lineups in this case] were so unnecessarily suggestive and conducive to irreparable mistaken identification as to a denial of due process of law.” Cf. Stovall v. Denno, 388 U. S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967); State v. Matlack, 49 N. J. 491, 498 (1967), cert. den. 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). Our review of the record leads us to the contrary conclusion and to agree with the trial judge’s rejection of the contention when it was advanced to him at the end of the State’s case.

The two victims had had ample opportunity during a period of iy hours to observe the man who had committed the offenses. The victims’ separate identifications of defendant at the lineup were immediate and positive, and neither was influenced by the police in making her decision. Such influence is not to be found in the fact that the victims knew they had been summoned to police headquarters to see whether they could identify a suspect.

The lineup consisted of defendant and four police officers in plain clothes. Each testified at the trial. The details of the lineup and of their appearances were fully developed on their direct and cross-examination as well as by the direct and cross-examinations of other witnesses to the lineup.

The differences in the appearances of the various men in the lineup were only such as to go to the weight to be given the identification testimony, not to its admissibility. Cf. State v. Matlack, supra, 49 N. J. at 498.

The same observation is applicable to the other circumstances adverted to in defendant’s argument, among which are: the failure to take pictures of the lineup; the absence of counsel thereat; defendant’s claim (denied by police) that he was forced into the lineup; the fact that the victims were not alone in the room from which they looked through a one-way mirror into the room where the men were lined up, and the alleged failure to permit defendant to select his own position in the lineup.

Nor was the admissibility of the testimony affected because, after the victims’ initial identification of defendant, each man in the lineup was asked to speak and put on the liner or cap, and defendant refused.

Further, there is no merit in the contention, raised for the first time in defendant’s supplemental brief, that while his arrest and booking in Trénton for possession of the pistol were proper, his subsequent detention at Hamilton police headquarters was illegal, thus rendering inadmissible the testimony of the lineup identifications. It is clear from the record that the Hamilton police had probable cause to believe that defendant was the man who had attacked Elaine and Susan and were justified in arresting and detaining him. See State v. Dilley, 49 N. J. 460, 463-464 (1967).

Nor is there any substance in the argument, also presented for the first time in the supplemental brief, that admission of testimony that during the lineup defendant said, “I’m not reading anything,” when asked for purpose of voice identification to read aloud a sign on the wall which the others in the lineup had read, violated his Fifth Amendment privilege against self-incrimination. See State v. King, 44 N. J. 346 (1965).

The only remaining point requiring discussion is defendant’s contention that the composite sketches should not have been admitted into evidence.

At the trial defendant’s objection was not limited to the introduction of the composite into evidence. When the visit with Banach was first mentioned during the direct testimony of the State’s first witness, defendant objected to the introduction of any evidence with respect to the preparation and use of the composite sketches. The objection was repeated several times during the trial.

In the trial court defendant’s principal objections to the testimony relating to the composite sketches was that such evidence was “irrelevant” and “self serving,” although there was also the suggestion that it was incompetent.

On appeal defendant no longer contends that the evidence was irrelevant; indeed, he concedes that it had “probative value.” His sole objection is to its competency. In support of Ms argument that the “composite sketches were erroneously admitted into evidence,” he cites us to People v. Coffey, 11 N. Y. 2d 142, 227 N. Y. S. 2d 412, 182 N. E. 2d 92 (Ct. App. 1962); People v. Jennings, 23 A. D. 2d 621, 257 N. Y. S. 2d 456 (App. Div. 1965), New York cases referred to in State v. Davis, 91 N. J. Super. 470, 474 (App. Div. 1966), certif. den. 48 N. J. 137 (1966), as embodying the New York rule which

exclude [ s] the composite picture except, where the credibility of the witness is raider “violent attack” or where there is a claim that, the testimony at trial is a “recent fabrication.” That is the same rule which governs admissibility of a prior identification by the witness. [91 N. J. Super at 475; emphasis added]

In Davis this court found it unnecessary to pass on the admissibility of composite pictures; it concluded that in any event in that case “there was no prejudicial error in the admission of the composite because of its lack of any striking resemblance to defendant and its practically worthless probative value as part of the State’s case.” (91 N. J. Super, at 476).

Defendant’s suggestion that we follow the cited New York cases overlooks, however, (1) the caveat in Davis that the quoted New York rule “is the same rule which [in that state] governs admissibility of a prior identification by the witness” (91 N. J. Super. at 475), and (2) the fact that the New York courts exclude evidence of extra-judicial identifications of a composite sketch, see e. g. People v. Jennings, supra, not because of any inherent difference between such sketches and photographs but because in New York, contrary to the rule embodied in New Jersey case law and in Evidence Rule 63(1) (c), all forms of extra-judicial identifications are deemed inadmissible hearsay unless they fall within the limited scope of section 393-b of that state’s Code of Criminal Procedure or are otherwise admissible under the “recent fabrication” exception to the hearsay evidence rule.

Except to the extent relaxed by the adoption of section 393-b of the New York Code of Criminal Procedure to permit a witness to testify to a previous identification by himself — an identification which constitutes “substantive proof of identification,” not limited in its use to bolstering a witness’ credibility or for corroboration, People v. Spinello, 303 N. Y. 193, 101 N. E. 2d 457, 460-461 (Ct. App. 1951) — New York has uniformly ruled that evidence of a prior identification is inadmissible hearsay, People v. Caserta, 19 N. Y. 2d 18, 277 N. Y. S. 2d 647, 648-650, 224 N. E. 2d 82, 83-84 (Ct. App. 1966); People v. Cioffi, 1 N. Y. 2d 70, 150 N. Y. S. 2d 192, 194, 133 N. E. 2d 703, 705 (Ct. App. 1956), unless the situation be one where the in-court identification of the witness is assailed as a “recent fabrication.” In the latter event, New York permits proof of a prior identification, including “a sketch drawn by the police artist from details given by [the victim],” this “under the well-established exception to the hearsay rule that ‘ “where the testimony of a witness is assailed as a recent frabrication, it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed.” ’ People v. Singer, 300 N. 7. 120, 133, 89 N. E. 2d 710, 711.” (People v. Coffey, 11 N. Y. 2d 142, 227 N. 7. S. 2d 412, 413, 182 N. E. 2d 92, 94 (Ct. App. 1962).

In People v. Caserta, supra, the New York court rejected the State’s attempt to rely on the “recent fabrication” exception to the hearsay evidence rule to support the admissibility of a witness’ testimony of his prior identification of defendant from photographs and held the admission of such testimony to be reversible error. The court said:

Prior to the adoption of section 393-b of the Code of Criminal Procedure in 1927, the rule had long been that it was reversible error even to admit testimony by the witness himself that he had previously identified an accused in person (People v. Jung Hing, 212 N. Y. 393, 401, 106 N. E. 105, 107; People v. DeMartini, 213 N. Y. 203, 107 N. E. 501). The cases consistently hold that this established rule is relaxed by section 393-b of the Code of Criminal Procedure only to the extent of permitting a witness to testify to a previous identification by himself of the defendant in the flesh (People v. Cioffi, supra, 1 N. Y. 2d p. 73, 150 N. Y. S. 2d p. 194, 133 N. E. 2d p. 704).
The reasons for this rule are well understood. One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when, as here, there was no particular reason to note the person’s identity. Where the opportunity for observation is limited and the opportunity and ability of the witness to identify the defendant is questionable, it is all too easy to bolster such testimony by calling a succession of witnesses who swear that they saw and heard him identify the same person upon previous occasions. This tends to give the idea to a jury that there is an impressive amount of testimony to identification when such is really not the fact. As for previous identification from photographs, not only is it readily possible to distort pictures as affecting identity, but also where the identification is from photographs in the rogues’ gallery (even though the name or number on the picture has been excluded) the inference to the jury is obvious that the person has been in trouble with the law before. Such an inference is accentuated where the defendant fails to take the witness stand. [277 N. Y. S. 2d, at 648-649, 224 N. E. 2d at 83-84]

Yew Jersey and the majority of the other states which have dealt with the question have rejected the rule and philosophy of the Yew York court. They have adopted the view expressed years ago by Dean Wigmore, 4 Wigmore, Evidence (3 ed. 1940), § 1130, at 208, that evidence as to a prior identification of an accused is generally more reliable than the same witness’ identification of the accused at the trial. State v. Williams, 39 N. J. 471, 489 (1963), cert. den. 382 U. S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965); State v. Matlack, supra, 49 N. J. at 498 (1967); State v. Sinclair, 49 N. J. 525, 545-547 (1967); see also, People v. Gould, 54 Cal. 2d 621, 7 Cal Rptr. 273, 275, 354 P. 2d 865, 867 (Sup. Ct. 1960); State v. Nordstrom, 244 A. 2d 842, 846-847 (R. I. Sup. Ct. 1968); State v. Childers, 313 S. W. 2d 728, 731 (Mo. Sup. Ct. 1958); Judy v. State, 218 Md. 168, 146 A. 2d 29, 31-33 (Ct. App. 1958).

In this State,

a pretrial identification, if made under circumstances precluding unfairness and unreliability, is admissible where the person who made the identification is in court as a witness; and both the identifying witness and third persons can testify about such an identification. State v. Matlack, 49 N. J. 491 (1967); State v. Williams, 39 N. J. 471, 489, 189 A. 2d 193 (1963), certiorari denied 382 U. S. 964, 86 S. Ct. 449, 450, 15 L. Ed. 2d 366 (1965). [State v. Sinclair, supra 49 N. J. at 545].

Further, the rule applies to pretrial identification of a photograph or photographs, State v. Matlack, supra, 49 N. J. at 497-498; and the photographs may be admitted into evidence, State v. Dancyger, 29 N. J. 76, 91 (1959), cert. den. 360 U. S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255; State v. O’Leary, 25 N. J. 104, 115 (1957). (It may be noted that police procedures of seeking initial identifications from photographs have received the approval of the United States Supreme Court. Simmons v. United States, 390 U. S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968)).

The rule of the cited cases has been enacted as part of the Rules of Evidence which became effective on September 11, 1967. Rule 63(1) provides in pertinent part:

A statement is admissible if previously made by a person who is a witness at a hearing, provided it would have been admissible if made by him while testifying and the statement:
$ 41 $ # $ $ * #
(c) Is a prior identification of a party where identity is in issue, if made under circumstances precluding unfairness or unreliability.

What has been said with respect to the admissibility of an extra-judicial identification of a photograph is fully applicable to an extra-judicial identification of a composite sketch prepared from a description given by a victim and by him identified, when the composite was completed, as a likeness of the culprit. In each case the eyewitness’ statement is that what he sees, be it a photograph or a composite sketch, looks like the offender. Indeed, the procedures used in this case in preparing the composite would appear practically to eliminate the danger present in other extra-judicial identifications, whether of persons or of photographs, that the person or photograph to be selected was suggested to the eyewitness by others present at the identification.

Contrary to what our dissenting colleague contends, an identification of a sketch which resembles a defendant is an identification of a party. This is the evidential value of testimony of such an identification made prior to trial — and this whether such hearsay testimony is deemed competent under a rule such as Evidence Rule 63(1) (c) or under the New York rule permitting “a sketch drawn by the police artist from details given by [an eyewitness] after the crime” to he admitted into evidence where the identification testimony of the witness at the trial is assailed as a recent fabrication. See People v. Coffey, 11 N. Y. 2d 142, 227 N. Y. S. 2d 412, 414, 182 N. E. 2d 92 (Ct. App. 1962), where the court said:

By his cross-examination of Nilsson and by statements to the court defendant’s counsel had endeavored to show the jury that Nilsson’s identification of defendant as the burglar was a “recent fabrication” contrived after defendant was arrested. To meet this claim the prosecution exercised its right to show by independent evidence that long before this alleged fabrication the witness Nilsson had taken a consistent position. This the prosecution did by proving that before he picked out defendant in, a police line-up Nilsson had so described the thief to the police expert that the latter was able to make a sketch or drawing which closely resembled the actual appearance of defendant.” [227 N. Y. S. 2d at 414, 182 N. E. 2d at 94; emphasis added]

We have not, as the dissenting opinion suggests, “fashioned another exception to the hearsay rules, as officially promulgated” iu Rule 63(1) (c).

“Under Rule 63(3) of the Rules of Evidence testimony about a prior identification is admissible so long as the maker of the statement is in court as a witness” (State v. Matlack, supra 49 N. J. at 500), if the. statement was made, as here, under circumstances precluding unfairness or unreliability. Nothing in the language of the rule limits such identification, as the dissenting opinion asserts,

basically [to] a prior identification of a defendant in the flesh, and, arguably, perhaps also [to] a prior identification of him from a photograph established to be an actual photograph of the defendant; and we find no justification for incorporating such limitations therein. Compare State v. Matlack, supra, where the court held, without any qualification or reservation, that testimony by a detective that the victim had made an extrajudicial identification of defendant’s photograph was admissible and rejected the contention that Rule 63(1) (c) did not authorize the detective’s testimony, saying:
* * * we find no limitation in the rule restricting the admissibility of such testimony solely to the maker of the statement. [49 N. J. at 500]

On the record in this ease, the testimony relating to the composite sketches and the composite sketches and photographs themselves were properly admitted into evidence.

The judgments of conviction are affirmed.

Conford, P. J. A. D.

(dissenting). I disagree only with that part of the opinion of the court which holds the admission in evidence of the police sketches was not reversible error. As I see it, these sketches were harmful hearsay, and not covered by any Yew Jersey exception to the hearsay evidence rule. Moreover, the patent purpose and effect of such admission was to support the credibility of' the complaining witnesses on identification, and such supporting evidence is positively proscribed by Evidence Rule 20 “except to meet a charge of recent fabrication of testimony.” Uo such charge was here made by the State, nor well could it be, the witnesses having identified defendant at the police station a week after the crime.

Every court which has considered the problem of admissibility of police composites or sketches of this general type has agreed, in principle, that such are hearsay, and not admissible unless founded on a recognized exception to the hearsay rule. State v. Davis, 91 N. J. Super. 470, 474-476 (App. Div. 1966), certif. den. 48 N. J. 137 (1966); Commonwealth v. Rothlisberger, 197 Pa. Super. 451, 178 A. 2d 853 (Super. Ct. 1962); People v. Turner, 91 Ill. App. 2d 436, 235 N. E. 2d 317 (App. Ct. 1968); People v. Jennings, 23 A. D. 2d 621, 257 N. Y. S. 2d 456 (App. Div. 1965); People v. Coffey, 11 N. Y. 2d 142, 227 N. Y. S. 2d 412, 182 N. E. 2d 92 (Ct. App. 1962); and see Hundhauser v. State, 44 Wis. 2d 447, 171 N. W. 2d 397, 398-399 (Sup. Ct. 1969). The hearsay nature of these exhibits is apparent (indeed, they are double hearsay) from the account of their manufacture contained in the court’s opinion. They are essentially an artificial pictorialization of the out-of-court descriptions of the culprit furnished the police artist by the victims. State v. Davis, supra (91 N. J. Super, at 474). The descriptions would themselves be hearsay and inadmissible unless saved by an authoritative exception to the hearsay rule. See Commonwealth v. Goetz, 129 Pa. Super. 22, 195 A. 144, 146-147 (Super. Ct. 1937). There were reversals of convictions for admission of such composites in the Jennings, Turner and Rothlisberger cases, all supra. There is no case holding such exhibits admissible if not within the scope of one of the stated exceptions to the hearsay rule mentioned in the next paragraph.

Such sketches have been deemed admissible where the descriptions on which they were based were made so soon after the crime as to qualify under the "res gestae” or “spontaneous utterance” exception to the hearsay rule, State v. Davis, Commonwealth v. Rothlisberger (dictum, 178 A. 2d at 853), both supra, or by way of exception based upon a justified buttressing of the in-court identification testimony of a witness whose identification of defendant has been attacked by the defense as a recent fabrication. People v. Coffey, supra. As noted above, the substance of this latter exception is now codified in this State by way of Evidence Rule 20 as one of the exceptions to the absolute prohibition of any evidence to support the credibility of a witness.

Admission of the sketches here involved obviously does not fall within the “spontaneous utterance” exception, the giving of the descriptions and the attendant preparation of the sketches having taken place two days after the criminal event. And see Evidence Rule 63(4). I have already noted the inapplicability of the “recent fabrication” exception.

There is no essential disagreement with any of the foregoing in the State’s brief or the court’s opinion. The case for admissibility of the sketches is rested substantially on Evidence Rule 63(l)(c) which allows admission of a “prior identification of a party [by one in court as a witness] where identity is in issue, if made under circumstances precluding unfairness or unreliability” (emphasis added). But it is entirely clear to me that these sketches do not constitute a prior identification of a party. They are actually identifications, in the proper sense of that word, of nothing. They are subjective pieturings — and surely not of the party, Ginardi, who was unknown to the witnesses at the time — but rather of the assailant, whoever he may have been. To lightly postulate that when made they were identifications of the defendant, within the intent of Rule 63(1) (c), is to beg the whole issue of the trial, i. e., whether the defendant was in fact the criminal assailant.

It is clear from the background of the subject that in formulating Evidence Rule 63(1) (c) the court and Legislature meant, by “prior identification of a party,” basically a prior identification of a defendant in the flesh, and, arguably, perhaps also a prior identification of him from a photograph established to be an actual photograph of the defendant. See State v. Matlack, 49 N. J. 491, 497-498 (1967), cert. den. sub nom. Matlack v. New Jersey, 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). Nothing in the history or background of the rule or its rationale remotely suggests that it was designed to cover either a prior out-of-court verbal description by a witness of an unknown culprit or a contemporaneous, subjectively assembled, pictorialization of such a verbal description. The courts of Pennsylvania, where proof of prior identification of the defendant is admissible, expressly hold that that rule does not justify admission of a police sketch. Commonwealth v. Rothlisberger, supra. I find no decision in disagreement with Bothlisberger.

1 do not find the discussion of the New York eases set forth in the court’s opinion to support its conclusion that a rule admitting proof of a prior identification of the defendant necessarily means admissibility of police sketches of the criminal assailant.

In the light of the recency of the careful and thoroughly considered joint formulation of our Buies of Evidence by the Supreme Court and Legislature, it would seem to me entirely inappropriate for this intermediate appellate court to assume, in effect, to fashion another exception to the hearsay rules, as officially promulgated, by equating admission of the exhibits in question with admission of a “prior identification of a party,” or by justifying such admission by analogy to Buie 63(1) (c). Moreover, I would not subscribe to the effort even if it were appropriate for this court to undertake it. Sketches of this kind, while serviceable in police detection work, can be dangerous as evidence in court. An innocent defendant could well, by pure fortuity, resemble closely a sketch so prepared. The effect of its introduction in evidence on an otherwise doubtful jury could be devastating. Eurther, no consideration related to fair presentation of the substance of the State’s ease against a defendant in such circumstances seems to require admission in evidence of such exhibits.

The court does not suggest that the admission of these sketches could be regarded as harmless if incompetent. Although defendant argued to the contrary as a trial tactic before the jury, the fact remains that both the police and the young women witnesses testified as to the close resemblance between defendant and the sketches. The jury saw both. We have seen neither. It took three jury trials to produce a conviction of defendant — the obvious area of contention throughout being identity.

Accordingly, since the evidence admitted was proscribed by both Evidence Rule 63, prohibiting hearsay not within a stated exception, and Evidence Rule 20, prohibiting any evidence to support the credibility of a witness not within a stated exception, and was prejudicial, I would reverse and remand for a new trial.

      The identification here was prior to June 12, 1967, so that the rule requiring the presence of counsel at a lineup mandated by United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), did not apply.

      The essential difference between such a sketch and the description upon which it is based is stressed in United States v. Zurita, 369 F. 2d 474, 477 (7 Cir. 1966) (sketch not discoverable by defendant under “Jencks” Act).

      The court said:
      We recognize that identity is an important but uncertain fact in every case and that corroboration of testimony on identity is valuable. This is pointed out in Commonwealth v. Goetz, supra, quoting from Professor Wigmore on Evidence. For this reason proof of prior identification by the witness is admissible; but we find no support for the admission of consonant statements bj’ the witness, even on the subject of identity, made in the absence of the person identified, except as an exception to the hearsay rule, as previously stated. Therefore, the admission of these sketches over the objection of the defendants was reversible error. There can be no doubt that it was prejudicial since the major issue in this case was that of identity. [178 A. 2d, at 855].

      While Evidence Rule 5 states that adoption of the rules “shall not bar the growth and development of the law of evidence in accordance with fundamental principles * * that rule is not a rule of relaxation, and changes in, as distinguished from interpretations of, rules, are contemplated to be effected by formal action of court and Legislature, L. 1960, c. 52, Art. Ill, not by the decisional process. See Pressler, 1969 Rules Governing the Courts, at 891, 90S.