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STATE v. SMITH

148 N.J. Super. 219 (1977)

372 A.2d 386

STATE OF NEW JERSEY, PLAINTIFF, v. ALBERT SMITH, DEFENDANT.

Superior Court of New Jersey, Essex County Court, Law Division (Criminal).

January 21, 1977.

Attorney(s) appearing for the Case

Mr. Paul Murphy, Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

Mr. Michael Giles, for defendant (Messrs. Lorber, Giles & Barone, attorneys; Susan J. Barone, Esq., on the brief and of counsel).

SCALERA, J.S.C., Temporarily Assigned.

Albert Smith stands accused of raping his wife in violation of N.J.S.A. 2A:138-1, and of having committed an atrocious assault and battery upon her.

Defendant moves to dismiss the rape charge, asserting that "a husband cannot rape his wife as a matter of law." No court in New Jersey has had occasion to rule directly upon this issue in any reported decision.

The State charges that, on October 1, 1975, defendant...

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