Decided: May 17, 1935.
STATE OF NEW JERSEY, DEFENDANT IN ERROR,
AARON L. SIMON, IRVING SIMON, WILLIAM CONLON, CHARLES DECKER AND ALBERT DURGETT, PLAINTIFFS IN ERROR
On appeal from the Supreme Court, whose opinion is reported in 113 N.J.L. 521.
For the State of New Jersey, James D. Carpenter, Jr., assistant attorney-general.
For the plaintiffs-in-error, Merritt Lane, Peter J. McGinnis, Harry H. Weinberger and John E. Selser.
[115 NJL Page 207]
The judgment under review should be affirmed, for the reasons expressed in the opinion by Mr. Justice Parker in the Supreme Court. However, we reserve opinion upon the question whether, in order to lay the foundation for impeaching a witness by a written statement, the writing containing such statement must be produced and shown, and also upon the intimation that such a paper when in the possession of a party need not be produced upon timely notice but only when subpoenaed. In the instant case there had been no notice to produce. The paper was in the possession of the special attorney-general, but was not in the court room and, so far as appears, was not in the vicinity of the court room. A party is not obliged to anticipate the need for, and to have in court, a paper of the character mentioned without prior
[115 NJL Page 208]
notice to produce. As indicated in the opinion of the Supreme Court the questions asked of the witness were not material toward a contradiction because, however answered, they would not constitute a contradiction of the testimony already given by the witness. So far as the record indicates, the cross-examining counsel did not have information regarding the contents of the papers and was making a flare on the chance that the answers might contain something helpful to defendants. The practice by which a foundation is laid for the contradiction of a witness does not sustain a "fishing" expedition by way of cross-examination. No harm is shown to have come to the defendants by reason of the court's rulings.
For affirmance -- THE CHANCELLOR, LLOYD, CASE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal -- None.