*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW SPRUILL, LOUIS DEFENDANT-APPELLANT.
Argued 28, June 1954 Decided June *3 Mr. R. the cause for George appellant. Sommer argued Mr. Harold the cause for the State Kolovshy (Mr. argued Harris, Mr. David H. and Special Deputy Attorney-General, 8atz, M. Jr., brief). David on the Deputy Attorney-General, The of the court was delivered opinion by Defendant was convicted in the Law Division J. Heher, Court indictment Superior upon charging he of criminal nonfeasance in that he did was guilty fail, and and “continuously, unlawfully wilfully” neglect omit, to his as a contrary public duty duly patrol- appointed
man of the Rutherford to suppress Police Department, first day house maintained on about the disorderly thereafter, Avenue, April at No. Union Rutherford, means of book “by Borough gaming horses,” law, in violation of and to about bring making law, but, of the offenders “on prosecution against then and there did suffer contrary, unlawfully gambling aforesaid,” in the manner and form a common-law offense denounced R. 2:103-1. by S. number,
The accused four in interposed timely requests, instructions to State’s testimony witnesses Bobrowski and be carefully Bologna weighed scrutinized to determine circum whether particular stances, hereafter, more by of which it was “influenced strong of favor or the extent hope also to “consider pardon,” to which such other been corroborated witnesses subject.” on the In the Division counsel Appellate treated these witnesses as “in the same as accom category and the plices”; “rules applicable were invoked. But the there was that accomplices” holding point untenable for want of a “specific objection” refusal to charge requested, “distinctly stating matter objected to for the grounds objection,” accordance with what was deemed a of Rule requirement now R. R. and Bule l:2-19(a), now l:5-l(a), 2:7-8(6), and, moreover, R. R. 3:7-7 (6), these witnesses assuming “were accomplices,” omission to category charge requests have been warning testimony “may influenced hope” “favorable treatment” at the strong *4 authorities, hands and should so prosecuting careful in the extent scrutiny, “considering, particular, corroboration,” such refusal was the usual although course, “is not a for trial, a new being solely in discretion”; and, matter the trial court’s lying in. event, the witnesses were not in defendant’s “accomplices nonfeasance,” and the had been “fairly and accurately law,” instructed” as to and “applicable the failure to
77 as charge “was not requested prejudicial.” erroneous N. J. Super. (1953).
The case is here by certification at instance of accused.
The State called wife, Anna, his and Bobrowski, Bologna witnesses, them evidence from adduced tending show this situation were of fact: In March when they fellow patrolmen in the Rutherford police department, accused Bobrowski, as a means of persuaded “easy gaining money,” to allow the use of his residence and home telephone races, facilities for on horse consideration of bookmaking $50, a weekly bill to be payment telephone paid by When bookmakers. indicated interest Bobrowski the accused one proposal, Lombardi Bobrowski’s brought home, and the result was an made in the presence agreement, wife, of Bobrowski’s use residence and of the criminal telephone prosecution enterprise. The next Lombardi and day two others on operations began Bobrowski’s A later, or two premises. day at instance accused, Bologna, electrician, and the accused’s next door installed a neighbor, extension in the telephone basement of Bobrowski’s residence means of a “knife line, “sitters,” switch” on the for the use of the telephone and for four weeks thereafter was carried on bookmaking there and the stipulated weekly was price $50 paid Bobrowski the accused. But later Bologna made sworn denial to the categorical County Bergen grand the transaction; part he was indicted for false contendere, nolo and was swearing, pleaded sentence awaiting at the time of testimony in the case now before giving us. He conceded that he was as a hopeful leniency result of support State’s case. Bobrowski denied his complicity he, also before the grand jury; too, was indicted for false then swearing, awaiting trial on a of not But plea guilty. he also admitted that he to receive favorable consideration as a hoped reward for his accused. against
78 a may New Jersey law in
It is settled alone, of an accomplice testimony convict a upon prisoner worthy in it credible if, entirely their is judgment, is close an accomplice given But testimony belief. confessed are with they tainted scrutiny. Accomplices, in their are influenced often criminality, so it in is of favor hope pardon; motive strong carefully “look into secret the courts to upon cumbent in and vic actuate minds to draw motives that bad might 13 N. J. Misc. 117 v. Hogan, timize the innocent.” State & A. N. L. 531 1935), (E. 1935). Ct. affirmed 115 J. (Sup. have evidence” The turned “State’s co-conspirators fact the credit to be to affects naturally “injuriously given least, of be bargain for it is at a testimony”; “suggestive, and the state authorities with relation to tween them them in case their which would be inflicted upon punishment about” the conviction aided in bringing Black, 97 N. L. 361 Ct. 1922). accused. v. J. (Sup. State The is one of interest. Interest is basic question but it is a circumstance that no a longer disqualification; be to the witness. The interest of a may party used impeach in the event the cause is a factor to be con or witness At law a witness credibility. sidered in common assessing reason interest testify by was rendered to incompetent action; and, while the incompetency the outcome of removed, such interest been the bias that would occasion with reckoned force determining probative still fact or circumstance testimony. Every tending the witness’ relation to case or parties show end of is admissible to the to be determining weight Lumber Trinily County Denham, Co. evidence. 1895); W. 203, 30 Ct. (Sup. Wigmore 88 Tex. S. 526, 966. ed.), Evidence sections (3d that he is an credibility It bears witness’ “accom- against crime and testifies for the charged” prosecution; plice indictment the witness “pendency against and the a similar of his indirectly possibility indicates favor currying *6 of a State”; so, too, for the the “existence testifying accom- promise or for his share as just expectation pardon plice the and when the co-indictee crime charged”; accused, testifies be may for the “his situation here also considered him accused exonerate the other to tempting and thus towards his own freedom.” section help Wigmore, State v. 71 N. J. L. 316 A. Compare Rosa, (E. & 1904); 687, v. 282 L. Ed. States, United U. S. 75 Alford 624, 51 218 S. Ct. (1931).
When the accomplice’s common-law testimonial disqualifi- cation removed, was the finally the arose as suffi- to question received, ciency when this there testimony out of came, in 1700’s, the late a the insur- need for recognition the ing qualitative sufficiency, form of a to taking practice a conviction founded on the discourage solely testimony of Davis, R. v. 1 accomplice uncorroborated. Smith and Leach Cr. L. 479 But in ed.) this (4th (1784). England did not become a until practice rule of law modern times. It was the constantly that instruction in recognized judge’s a this was mere his exercise of regard common-law function the upon evidence, advising weight not statement of a rule lawof upon binding jury. section 2056. In a there Wigmore, cited, Buller, J., case said: thought proper your “I it to refer case to the consideration My Judges. the twelve doubt was whether the evidence of an accom plice, by any materially unconfirmed other evidence could affect case, judges was sufficient to warrant a conviction. And the opinion unanimously accomplice competent are that an alone is a witness, jury, weighing probability if and that his testi mony, worthy belief, supported think him a conviction such perfectly legal. alone is The distinction between com petency long ques credit of witness has been settled. If a respecting competency, ques tion be made the decision of that province judge; tion is the exclusive but if objection go only, to his credit must be received and jury,
left under such directions and observations from the may require, say Court as the circumstances of the case to whether they sufficiently guide think it credible to their decision in the case.” Robbins, (4th R. v. ed.) (1788). Atwood and 1 Leach Cr. L. 464 1110, Tr. 3 Cox Cr. Mullins, 7 n. s.
In R. v. State Maule, held J., (1848), “* ** accomplice cannot all that an there is no rule oí law at * * * ad It is an observation unless he is confirmed. be believed evidence, dressed, to to but addressed to the Court exclude say evidence, weigh and it for them who have to they satisfy will will them or whether whether the confirmation * * * judges given any. The directions of without satisfied juries juries point respect which are not directions of law in that respecting facts, adopt, which but observations are bound to because, giving, judges very properly re habit of with are fact, judge upon spect both as well as the counsel matters of jury.” Feigenbaum [1919] And see R.
sides to assist endeavor 1 K. B. to the same effect. *7 law the of a con-
Thus, at common practice discouraging the of uncorroborated solely viction resting evidence, a rule but a “counsel accomplice not caution” to the by judge jury, recognition given to an adverse on such danger proceeding judgment evidence alone.
But, that in the while there is doctrine support of this rule the trial omission application judge’s trial, a caution was not of itself a for a new being discretion, Sec Wigmore, matter in the trial solely judge’s arbitrary we that there cannot be an tion are clear that the evi refusal terms specific to instruct scrutinized dence of an is to be carefully accomplice in the pro assessed in the of his interest special context ceeding.
Here, to ob conspirator Bobrowski was a confessed anti- defeat struct State’s justice operation laws, in the directly by defaulting performance gaming And could find that as a officer. duty police in the was a cer participant conspiracy; Bologna knowing false swear of non vult to the indictment for tainly plea reveals an interest on his directly credibility. bearing ing other, is know each conspirators It not requisite all they should at the same time. join common purpose Lennon, State v. 3 N. J. 337 (1949).
Generally, is bound to with re comply judge quests instructions correctly state controlling legal principles evidence, in relation to the and concern the material issues and of the case. A instruc points requested tion is “its by judged practical application to facts of the case in hand and its abstract inerrancy.” Rombolo, State v. 91 N. J. L. 560 & A. Garri (E. 1918), son, J.
The requested instruction the scrutiny involving to be given testimony adduced State from the accomplices related to e., crucial of the case—i. point principles governing evidence taken from weighing those criminis; and, if particeps there be measure of discretion in circumstances, some there no basis here in reason and justice for the refusal of the requests. dis Legal cretion does not mean arbitrary action, but reason judgment circumstances, ably exercised according particular having in view the gravity the issue. The instructions did not cover the specific point, and were not otherwise in this Evidence adequate regard. complicity witnesses and their resultant involvement in criminal pro of their own was ceedings admissible as interest bearing upon affecting credibility; it is of the essence aof fair trial that the of such significance testimony be made known *8 to the for an of their understanding discharge function to assess the evidence.
The to objection the refusal to charge requests The adequate. policy court, of the cited rules of R. R. 1:5-1 (a.), is the avoidance 7(6), of error timely 3:7 — of the specification and the exception; objec tion itself was notice that the accused remained insistent that the particular embodied requests sound and pertinent instructions not covered substantially charge given.
The of reversed, conviction is and a judgment new trial is awarded. with the I C. J. (dissenting). disagree
Vanderbilt, In are without they overruling, effect of court. majority Ct. it, 1922), 98 N. L. 350 Bove, (Sup. State v. J. mentioning In 1923). & A. curiam, 98 N. J. L. 576 (E. affirmed per former Supreme our that case defendant to appealed crime of of selling Court from a conviction of judgment that the trial other he lottery argued tickets. Among things to the erred in certain refusing charge requests court accomplices the defendant’s effect that of also in re scrutiny viewed with the closest should be conviction that there could no charge fusing request Mr. testimony. of the accomplices’ without corroboration court opinion Parker a unanimous dis Justice saying: of both contentions posed requests charging is to this is that of such dis- “The answer cretionary Byer, J. as State v. 39 N. L. 598. And with the court. necessity corroboration, legal is it is not of the rue oases, necessary, legally in a so decided number been many them recent.” this holding I fail to see reason for overruling rests in the accomplices charge such a trial discretion of the judge.
, destroy does invariably The not immunity promise testimony: truthfulness of a witness’ immunity, then, being promise element of “The essential invariably distrust, being made, should no invariable rule but made, Moreover, though in- it had made. if its be fixed as been infinitely charge vary and the must with the nature fluence Finally, credibility personality accomplice. a matter is impossible variety, to determine it and anachronistic elusive story that, promise, man’s must with or without advance Wigmore ed.) (3rd be distrusted.” on Evidence § moreover, both witnesses admitted Here, ou cross examination on behalf leniency were they testifying hopeful as to trial The judge charged State. of witnesses: credibility *9 “Now, questions Gentlemen, fact, weight Ladies and with evidence, credibility you give of the will witness sworn case, you proof, the inferences that draw from will you ultimately proof, the conclusions that will from draw entirely nothing your Court to do. These are matters within province, jurors, you, yourselves. which must determine As judges facts, you credibility sole are to determine the determining worthy witnesses. In whether or not a witness is belief, you credible, may and therefore take into consideration the appearance witness, and the demeanor of the the manner in which may testified, he she have interest in the outcome of the trial, you may reasonable, also consider which the more logical, story.” probable more and the more
Obviously jury was aware of possibility be unreliable and accomplices its might duty as the trier facts was to evaluate their testimony in this light.
I can see no reversible error and I accordingly would affirm below. judgment Oliphant I am authorized to say Jacobs, JJ., join this dissent. Burling
For Heher, reversal —Justices Wacheneeld, Brennan —4. For Vanderbilt, Justice and Justices affirmance —Chief
Oliphant and Jacobs —3. JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW MONAHAN, DEFENDANT-APPELLANT, EUGENE AND MONAHAN, MICHAEL DEFENDANT. Argued June 14, 1954 Decided June