*1 Thus, in view of election, may the issues it Keansburg’s contest are whether Mularehuk an (1) employee the time of the incident and was Keansburg acting within the of his when he shot scope Robert employment McAndrew, and whether (2) Keansburg guilty active Mularehuk to wrongdoing carry authorizing without in its gun any adequate training handling use, which contributed to If proximately injury. finds in favor of plaintiffs issue, on either verdict $3,000. must be returned for plaintiffs amount costs to abide the outcome of the Affirmed, retrial. Jacobs, J., concurs result.
For Weinteaub, Justice and Justices affirmance —Chief Hall, Jacobs, Francis, Proctor, Schettino and Hane- man —7.
For reversal —Hone. JERSEY, PLAINTIFF-RESPONDENT, OF NEW STATE CLAWANS, LILLIAN DEFENDANT-APPELLANT. May 22, July 3, Argued 1962 Decided 1962. *3 defendant- Mr. Jerome C. the cause for Eisenberg argued Eisen Mr. Jerome C. Stuart L. Pachman and appellant (Mr. brief, Eisenberg, & berg, attorneys). on the Messrs. Clapp Streleclci, Essex County, Miss Prosecutor of June Assistant Peter Murray, argued plaintiff-respondent (Mr. cause for brief, Mr. and on the Prosecutor, of counsel Assistant attorney). Essex County, Brendan Prosecutor of Byrne, T. The opinion of the court was delivered by HmíemAjst, J. Defendant appeals from conviction subornation of false swearing.
The false defendant, swearing subornation which indicted, member of the bar this State for years, *4 in arose from the contained contradictions between facts sworn statement made Barbara Holmes police one Booker Drinkard and her sworn concerning at Drinkard’s preliminary hearing. addict, arrested
Holmes, April a narcotic on 11 she a sworn April signed of narcotics. On for possession In the response in and answer form. question statement 1C* ** tell us how came you Will now you question in ?” she your possession heroin suspected this to have Drinkard.” it from Booker answered, “1 obtained Drinkard, the father of Davis, several children Lessie aunt, Holmes’ was arrested on the basis of this statement and on 26 was May accorded a in preliminary the hearing Newark Municipal Court. Defendant was his attorney. Holmes, who had been in since her jail arrest, brought to court at approximately 11:00 a. m. as a witness appear against Drinkard. She and Baker, another prisoner, Irene together with Gant, Mrs. a matron from Peni- Caldwell sat tentiary, on bench front magistrate. Drinkard’s case was trial called for on that afternoon. Holmes, sworn, been having testified that “I myself obtained drugs New York and at the time I that state- gave ment I was under April the influence of narcotics.” [of 11] In answer to the direct of whether she had question gotten from Drinkard she drugs Be- replied negative. cause of the contradictory testimony at Drinkard’s given trial, Holmes was indicted for false swearing pleaded in October 1960. guilty
On trial defendant’s Holmes testified that: Defendant came over to to her three occasions speak on on morning time, said, The defendant May 26. first “Booker Drinkard wants if will say you to know New York you got drugs and that were under the influence of narcotics.” Holmes you I am said she “I know what replied, going say.” same time, defendant made statement. essentially second time, third according Holmes did not answer. The if I Holmes, defendant “said that Booker said would say I in New York he would see that got that I got drugs all for me.” This time do he could or he would lawyer tell not to worry. Booker Holmes directed he Drinkard would do “whatever her that Defendant told conversations, each of the Holmes During me can for [her].” five her for approximately knelt beside said, defendant seconds. her testimony the reason for on explanation
Holmes’ trial, was “Because I at defendant’s as given May is. I that Booker Drinkard know fellow type know *5 he a way out of out on bail. He getting jail, to out. I was afraid what he to manages get my do might annt if because of me I would that statement on that.” put
Monahan and had arrested Howard, two detectives who testify Holmes and who had been in court to present Drinkard’s Holmes’ both corroborated hearing, partially Monahan, Holmes, 15 feet story. who had been 10 to conversation, testified that hear he unable to although any did see defendant Holmes the Drinkard to before talking Howard, ease was called. saw away, who was feet he defendant twice to Of the conversations speak Holmes. occasion, heard defendant only Holmes to on the second say “Tell him not to worry.”
The State called neither Mrs. nor the Baker. prisoner, Gant had present Hone of the other witnesses called who been re- the Drinkard could hearing the courtroom during member to Holmes. seeing speak that after had to agreed
Holmes testified further she Drinkard her she informed testimony immediately change Lavigne, lawyer her desire to have as Leon attorney represented and who had family previously who knew her municipal he had been in court her. testified that Lavigne was for false 27, 1960, arraigned Holmes day on May cases, he in attendance on but that was other swearing, As presence. of Holmes’ no previous having she called to him. bench pass prisoners’ he was about to her, testified, defendant he speak turned to When he Mr. “I told you Lavigne and said to Holmes: came over take and here he is and he will good be here going he was this remark puzzled Although you.” care of Holmes her request by help then acceded to Lavigne not of false guilty plea he entered on the prior of her day. out arising swearing noted, subsequently this plea changed before As Davis Later that Lessie day, spoke in October. guilty the courtroom the presence outside in the corridor Lavigne at that time he make an defendant, suggested who *6 appointment the aunt. with An was made appointment that time afternoon at which informed the Davis Lavigne woman he would not represent her niece.
Within a week the between him occurred following defendant: “I met Miss Clawans in the hall of Judge 1, Castellano’s court. There is a hall outside of Part big and this was in Monday either the morning, following me, Tuesday morning. And she said to ‘Aren’t you said, I going represent Barbara Holmes?’ ‘Ho.’ She said, ‘Why not? She is a sweet nice very girl, very I girl.’ Clawans, said Miss ‘If she such a nice sweet her.’ girl you ‘Well, She I represent said, can’t represent ” her.’ I said, can’t, ‘If I you won’t.’ Defendant testified that she had to see Drinkard in gone jail on the arrest, 24, of his but had night not May decided him, when she left whether to in represent part because his ability Lindner, was pay questionable. William who was in jail, was called State in rebuttal and testified Drinkard had defendant that given $55 night. Defendant further testified in that she was not the court- room at on time any May morning that stating she arrived in the afternoon after the Drinkard hearing had been called. She denied talked to Holmes having on 26May prior to the Drinkard trial. jury returned verdict which guilty de-
fendant appealed Appellate Division. Before argu- ment there we certified on our motion. See B. B. 1:10-1 (a).
Defendant the trial court argues erred in ad- (1) into mitting evidence Holmes’ sworn statement of April 1960 and the exhibit permitting to be jury’s posses- sion deliberation; its during the State’s (2) summation prejudicial; defective; (3) indictment de- (4) fendant’s motion at the end of the State’s case should have been since there was no granted proof defendant’s of the false the trial swearing; court (5) erred certain refusing request that particularized inferences favorable defendant could be drawn from failure of the State to call Irene Baker and Mrs. Gant.
I. in ad- err Defendant that not did the court argues only also evidence, but the Holmes sworn into mitting statement in the possession that statement to be permitting its deliberations. jury'during To maintain its ease the State against must swear falsely not she asked Holmes to prove only that but so. The commission of the that Holmes did fact do *7 element crime of false Holmes was an essential swearing by subornation. the State’s this defendant for proof against v. N. 219 The sworn state Moffa, State J. (1961). issue for it demon ment was evidential in resolution of that strated a variance the oral testimony given with Drinkard into accepted been hearing. Having properly evidence for this was entitled to take purpose, jury consideration statement into the room for its jury Wharton, & Pro deliberations. Criminal Law during cedure, 2113 (1957). §
II. Defendant that a of the summa portion State’s argues tion was such made at trial prejudicial. objection No but defendant now that the summation constituted urges error” a reversal and therefore that “plain judg ment of conviction See State v. required. Hipplewith, 33 N. J. 300 R. R. 1:5-1 (1960); (a).
The to which defendant now objects as language follows: “Finally, was Booker where Drinkard? Booker Drinkard was custody arrested, into on the taken of Barbara Holmes. duty produce no has hostile witnesses. The State State duty produce going say no witneses are that what their * * attorney say. them wants to defend
The reference to Drinkard was made in reply he that ant’s summation to the wherein it was argued yet was an essential witness for the case and State’s this, not called. In view of it was State proper him calling to make some comment on the reason for not for the was, course, as a witness. improper called, also be suborned that if Drinkard would suggest was taken to above, objection As noted no by defendant. whether the the summation at the trial. We need not say error statement, itself, plain constituted prosecutor’s reversal, we are satisfied this erroneous but warranting statement, below, with the matter in V together require Orecchio, J. 125 a new trial. State N. (1954).
Ill and IY. all in We find no merit at the third and fourth grounds and, therefore, for reversal direct no urged additional comment to them.
Y. reversible Defendant that the trial court committed argues to deliver the charge requested error refusing following her: jury may “32. The further infer the failure on the *8 Gant, part produce Baker, prisoner, of the State to Irene a and Mrs. jail sitting whom matron with Barbara Holmes was on the May 26, 1960, prisoners supports on bench the Police Oourt an inference that there was no conversation between' Barbara Holmes defendant, Clawans, place, and Miss Lillian at and time and place.” that no such conversation ever took failure of a a Generally, party produce to before trial which, tribunal it would serve proof appears, to elucidate issue, a the facts in raises natural inference that the party so fears of those facts would exposure be failing unfavorable Evidence, him. 2 285 Wigmore, (3d to ed. 1940). But § such an arise inference cannot certain except upon eondi-
171 and the inference is to destruction always open tions hy- of make some other circumstances which explanation fear of ex- natural one than the party’s more pothesis civil as well as This to criminal posure. principle applies 285, Id. trials, to as well as the accused. the State to §§ 566 v. 10 N. J. Cooper, (1952); 290. See State Elliott, aff’d 1942), 129 N. J. 169 Ct. State v. L. (Sup. Callahan, & v. o. b. 130 N. J. L. 174 A. 1943); (E. 76 N. L. 426 Ct. 1908). J. (Sup. an from the nonproduc
Eor inference to be drawn was within tion of a witness it must that the appear person his testimony to power party produce in respect would have been to that utilized superior already Meistrich v. Casino Arena the fact to be proved. Attractions, Inc., 1959), Div. 54 N. J. 31 Super. (App. Bilotta, 44 v. 18 N. J. modified 31 N. J. O’Neil (1959); cit., Div. 2 Super. 85, 1952); Wigmore, op. (App. 286, 287. supra, §§
Eor obvious the inference is not if proper reasons the witness is is either a for some reason unavailable or be so person likely preju who his would be position diced that the latter could not be against party expected him, whose obtain the unbiased truth from person cumulative, would be or inferior unimportant DePaola, 5 what had been utilized. State v. already Marino, N. 71 N. Super. J. Pawlowski (1950); J. Bilotta, 86; O’Neil v. at 1961); supra, p. Div. (App. cit., 286, 287. The failure to call Wigmore, op. supra, §§ available both has been said to parties preclude witness Bilotta, an either. O’Neil v. inference raising against views However, the more approach supra, p. logical 86. both, as a possible against this situation inference posing of the inference strength of the existence questions the circumstances being dependent upon either against case, whether one including party superior and what testimony of the witness identity him, relationship as well as the expected be might *9 172
the cit., witness the parties. 2 288. Wigmore, op. supra, § Brookchesker, See Inc., Michaels v. 391 N. J. (1958); Marino, cit., Pawlowski v. 126; at supra, Wigmore, p. op. supra, 288. §
Application of the above principles particularly and perplexing difficult a charge where litigant requests to that effect. Such request comes at the con normally clusion of the entire case without warning opposition. The allegedly is not accorded an defaulting party opportunity to justify or explain his failure to call the witness. It conceivable that the factual situation involved the litiga tion and the witnesses, the are relationship parties to such that the trial reach a conclusion as judge may properly to whether an inference could arise without the necessity proof explanation and therefore prior warning without the intention to The better request charge. practice, however, is for the party seeking to obtain a encom passing such an trial inference to advise the judge counsel out of the the the his presence jury, close of case, opponent’s intent of his to so request demonstrating the names or classes of available not called and the persons the reasons for conclusion that have they superior of the facts. This would accord the accused of non- party either production opportunity of calling designated witness or to the court demonstrating by argument proof the failure reason for to call. Depending upon disclosed, thus court particular may circumstances trial failure determine that to call witness raises no inference, one, or an unfavorable and hence whether any or a is warranted. reference in the summation has a urges prosecutor wide discretion what deciding evidence to adduce. refers to State v. 36 N. J. Murphy, where Chief (1961), Justice Weintraub said: prosecutor may sensibly “A decide for various reasons not to use example, evidence whicli could advance the State’s case. For
n confession or other proof may which the State does not need raise *10 distracting unduly issues or extend the trial or invite claims of prejudice; may or the offer disclose material can which harm the matter; identity may in another an informer need- lessly suggested enough be revealed. have We to demonstrate prosecutor. peremptory for need discretion in the He does not have a duty support charge. to use all available evidence to And surely, prosecutor’s if a court should undertake to review the deci- matters, in sion it such must know for the reasons his decision weigh against them the contribution the evidence could make in the ease.”
The issue in was Murphy whether the trial court could compel the prosecutor to use evidence favorable to the State. duty the prosecution to reveal evidence or adduce favorable to the defense matter, is another Wigmore, (see cit., op. supra, 2079, 2080), as also is the before question §§ us, whether an drawn unfavorable inference be may the failure of the State call employees one its who was so situated at the time of the offense as to be alleged a likely source of information. come,
We therefore, here made. particular request
Defendant in directs the thrust of her argument sup of the the failure port request, toward to call Mrs. Gant. At point no this does she that inference appeal argue any arise from could the failure to call Irene Baker. The avail of Mrs. is admitted It stated ability Gant the State. at oral that prosecutor argument the reason for not as a having called her witness the fact that her lay cumulative, would have been thus admitting by implication she had of the crucial facts. easily conceivable that the State would have a meri- Baker, reason not Irene torious who stood calling charged on the of the conversation of Holmes day alleged with crime does defendant that the argue and defendant. For requested an insofar as to call Baker is proper omission the error in thereby concerned, impliedly admitting including does, however, She insist that the failure request. her an rise to inference favorable to gave call Mrs. Gant defense. Peni- in the Caldwell employed Mrs. Gant was matron a member of As she should be considered tentiary. such it and hence county the law enforcing agency against that she is not prejudiced reasonable to conclude (cid:127) all the conversations which form the State. During defendant, she sat beside right against bases of defendant’s conduct and was in a observe position Holmes and Holmes. the discussions between and overhear Baker, had better oppor- no one for Holmes Except was or could transpired. She actually to know what tunity *11 status entire transaction —a an to the eyewitness have been anyone to that of superior make her testimony could which have been testimony her might Although Holmes. except cumu- be considered it cannot that of Holmes identical with redundant. unnecessarily sense being in the lative be termed corroborative. better would most unusual. here present situation The factual attempt for Drinkard to as counsel had the right suborned, Holmes, the person allegedly with to converse facts. A slight change her version of the to obtain in order render them would to defendant words attributed with such purpose. consistent of a construction susceptible detail, had a criminal Holmes, testify sole witness to the vulnerable to credibility unusually her record and the by is not Gant, questioned whose probity Mrs. attack. have corroborated a vital witness who could State, became that her an other than explanation Absent the incident. was en- cumulative, defendant have been would testimony the could infer that charge titled request unfavorable to the would have been testimony Mrs. Gant’s called. she been had however, offered, the of the language form In the too broad and the entirely judge charge requested This broadness arises not so charge. refused to properly therein of Irene Baker. As of the inclusion because only inference, if is merited, of the one stated, the extent before characterization far as to the of the permit so only goes
175 absent as to the party. unfavorable defaulting This is a defend cry far interpretation sought ant her even court request. Nevertheless, though denied would have no properly request ordinarily to correct the J. L. obligation 89 N. Reilly, charge—State McNair, & A. J. (E. 1916); State v. N. Super. Div. 1960), cert. den. U. S. 81 S. Ct. (App. 715, 5 Ed. 2d 706 there were facts L. (1961), peculiar here Which warranted the of the molding express charge the proper inference. The aggregate prosecutor’s summation, above, discussed failure to proper inference rendered the trial to defendant. prejudicial Orecchio, State v. supra.
Reversed and remanded for retrial. J. I concur (dissenting in the result part).
Ekafcis, announced court but cannot with what agree appears to be the reason advanced for result. principal reaching
The reversal predicated on the failure of the largely trial court remold an sub- improper request mitted on by defendant an incidental aspect case, and submit the corrected There is request jury. not case to be found in New which Jersey imposes any *12 such On burden. the and with reason, the contrary, good law always been otherwise.
We aTe not here awith to dealing request instruct the an essential element jury concerning of the crime charged defendant, the which trial against the has failed judge to cover his main A charge. mandatory exists on the duty of trial courts to part advise the with jury respect fundamental of law principles which control the case being tried. The exists without obligation to whether a regard valid or incorrect to legally is request charge presented. fact, In an even oral in most request terms, general for define to the crime or example, alleged its essential ele- ments, made the conclusion of the instructions must be Butler, 27 J. 560, honored. State N. 594 (1958). But 176 inci- issues to had never been positive duty applied inferences to adverse
dentally case, the such as possible or a to a suit be drawn failure of by party If instructions indictment to certain produce witnesses. matters, must they are desired or on collateral incidental the by be made the written subject specific requests thereof, In the interested B. B. 4:52-1. absence party. with the law court has no affirmative to deal obligation Wharton, to such the case. 5 Criminal phases of relating Law 258. 257, and Procedure 2090, pp. (1957) §
Moreover, it burden the attorney prepare state in such fashion that requests they correctly the law. When that is must be done, complied requests with if for the matter to which relate is factor they court, however, consideration is not jury. bound to follow the counsel. precise language employed He state the involved in his own words so may principle as there is no material from the theme. long departure common, and, think, I the better for trial practice, their main judges into Such integrate requests charge. makes for issues in procedure better treatment case, and facilitates understanding by jury.
But if a states the law or is request incorrectly partly incorrect, is, correct and course, the trial partly judge Firth, justified 275, State v. 103 N. J. L. rejecting it. Ct. 1927); 627, State v. 89 N. J. L. (Sup. Reilly, & A. State v. 87 N. (E. 1916); Harrington, J. L. Herron, & 713, 715, A. 1915); State v. 77 N. J. L. (E. Wharton, & A. 1908); supra, (E. pp. § S., Law, 263; 23A C. J. Criminal If 1334. the subject § is in the case in his incidentally, discretion he revise may remodel and then include the request correct state in his so, ment Eailure to do charge. however, is not reversal; he is under no ground dutjr out the pick it, part reject bad ETor good part. is he under any rewrite obligation instruc requested *13 to correct erroneous tion or statements contained in it. As Times, the Court of Errors said in Trenton Hoffman 450, 125 N. L. & A. 1940) : (E. J. perceive charge no error to “We trial court’s refusal request request as submitted. It has held ‘A must stand been that presented language unless or fall in which it is to the court language, counsel. If a modification of such however modified slight, required, party, strict is order to entitle the as a matter of right, request charged, charge to have his is not to it error refuse request. judgment such The reversal of a for the failure of the modify request court to so would be error not that it ”
it, thing yet (Emphasis court’s) is be heard of.’ Co., & effect, And see to the same v. Laird Gimbel & N. J. L. & A. Manchester B. L. 1937); (E. Allee, Ass’n v. & 1911). 81 N. J. L. 611 (E. A. is a matter common that before just summation handed of counsel the trial judge frequently multiple requests many typewritten charge covering R. this case 40 were See R. 4:52-1. pages. (In requests He examines them and undertakes generally submitted.) ones of his correct into the framework integrate case, If refer to fundamental elements of the they charge. instructions, he knows the must covered in his subject be counsel, of the irrespective phraseology employed by so he is not too much concerned with the of that accuracy But if some them relate to collateral type requests. law thereon, justified matters and state the he incorrectly in his them and does so unless discre- usually discarding feels tion, ease, conscious he atmosphere fairness he should make corrections and instruct necessary Whether that course should he fol- jury accordingly. or the been improper requests rejected, always lowed court, as -within the of the trial judgment regarded where a court has been I know of no instance reversed for an improper statement of request containing rejecting for to correct it and it law, or failing give case, And in this where a as refashioned. strikingly was delivered to and fair I jury, can thorough cause the established just departing see no rule. *14 warranted, but however, a new trial I do agree, in the summation error was committed plain because only said to Assistant Prosecutor The Special the State. the jury: “Finally, Drinkard was was Booker Drinkard? Booker where custody
arrested, on of Barbara Holmes. taken into duty produce The has State hostile witnesses. State no say duty produce going are what their no witnesses that * * attorney say. added) (Emphasis wants them and and prejudicial
This statement was unfair possessed an unjust clear about result. capacity bring 28 N. J. The defendant was Corby, (1958). for Resolu swearing. tried false being allegedly suborning tion of the or innocence depended issue guilt upon her In that credibility. atmosphere difficult evaluation State, cloaked representative prestige could office, his suggested (so infer) by quoted be call assertion that it would futile him to Drinkard would him because defendant suborn too. J., in this
Hall, concurs dissent. JJ., in result. Hall, concurring Francis For reversal —Chief Justice Weintraub, Justices Jacobs, Francis, Hall, Proctor, Sci-iettino and Hane- MAN-7.
For affirmance —Hone.