Van Dusen, Aldisert and Stahl, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal is from an order of March 3, 1967, in which the District Court of New Jersey denied petitioner-appellant a writ of habeas corpus.
Petitioner was convicted by a jury on three indictments charging him with rape, assault with an offensive weapon, and assault with intent to rob. In July 1959, he was given consecutive sentences of 25 to 30 years, 2 to 7 years, and 8 to 12 years, respectively. The convictions were affirmed on appeal. State v. McMillan, 65 N.J.Super. 478, 168 A.2d 81 (1961).
On collateral attack, the Appellate Division, in an unreported opinion of April 1, 1965, set aside the conviction for assault with an offensive weapon on the ground that it was merged with the rape conviction. Claims that the charge was improper and that petitioner was ineffectively represented by counsel at trial were, however, rejected.*fn1 The New Jersey Supreme Court denied certification for lack of merit. Having thus sufficiently exhausted his state remedies as to these claims, which were also rejected by the District Judge without a hearing in an unreported memorandum opinion (Civil No. 1002-66), petitioner urges them upon this court.
Violations of due process and equal protection are alleged in the trial court's failure to charge the jury on the degree of resistance necessary to constitute rape. Whether an act alleged to be rape is against a woman's will is ordinarily indicated by resistance, see State v. Terry, 89 N.J.Super. 445, 215 A.2d 374 (1965), and is a question for the jury, see State v. Auld, 135 N.J.L. 293, 51 A.2d 215 (1947). Petitioner maintained, in a statement he gave to the police (N.T. 200-203) and on the witness stand at trial (N.T. 239-242, 247, 250-255, 262-263, 272, 276-277), that the prosecutrix had consented to relations with him. Her testimony indicated that any apparent consent was feigned out of fear and the hope that rescue might be forthcoming (N.T. 34-40). No instruction on the degree of resistance required for the crime was requested (N.T. 317-318), none was specifically given (N.T. 319-332),*fn2 and no exception to the failure to so charge was taken (N.T. 332). On direct appeal, neither the necessity of such an instruction, nor the conduct of petitioner's trial counsel with respect to it, was raised by his new court-appointed counsel.*fn3
The record does not support petitioner's contention that the trial judge, by not instructing on resistance, in effect directed a determination that it was present in the degree required for rape. Cf. State v. Yevchak, 130 N.J.L. 584, 34 A.2d 231 (1943).*fn4 Moreover, in the absence of a request to charge, his recital of the statutory language "forcibly against her will" was adequate compliance with his duty "to instruct the jury as to the fundamental principles of law which control the case," see State v. Butler, 27 N.J. 560, 595, 143 A.2d 530, 550 (1958). See, also, State v. Riley, 28 N.J. 188, 145 A.2d 601 (1958), cert. den. 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832, cert. den. 361 U.S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959).
Petitioner further asserts that the failure of his trial counsel to procure, by request or exception, such a charge was ineffective representation amounting to a denial of due process and equal protection. It appears that when petitioner was tried in 1959, no specific rule governing the degree of resistance required for rape, as asserted by petitioner, had been articulated by New Jersey appellate courts. However, the testimony of the prosecutrix evidenced active resistance, in the face of force, under any standard.*fn5 Indeed, the circumstances were such that, under the rule later enunciated, she would have been justified in offering no resistance.*fn6 Alert advocacy might have dictated that a request for an instruction on resistance be made, but due process did not. Petitioner's counsel argued forcefully to the jury in his closing statement that there was a lack of evidence that his client acted forcibly and against the prosecutrix's will and that a guilty verdict could only be returned if each element of the crime was proved beyond a reasonable doubt (N.T. 293-4). On this record, we are unable to say that the conduct of petitioner's counsel was "* * * so lacking in competence or good faith that it would become the duty of the trial judge or the prosecutor, as officers of the state, to observe and correct it." See United States ex rel. Darcy v. Handy, 203 F.2d 407, 427 (3rd Cir.), cert. den. Maroney v. United States ex rel. Darcy, 346 U.S. 865, 74 S. Ct. 103, 98 L. Ed. 375 (1953); In re Ernst's Petition, 294 F.2d 556 (3rd Cir.), cert. den. 368 U.S. 917, 82 S. Ct. 198, 7 L. Ed. 2d 132 (1961).*fn7
Petitioner argues in his brief that due process was also violated in that his counsel failed before trial to seek to quash the assault indictments as merged with rape and in that the Appellate Division on collateral attack failed to vacate all his convictions as merged with one another. We have examined these contentions and find them to be without merit.*fn8
The order of the District Court denying the writ of habeas corpus will, ...