On writ of error to the Essex County Court of Quarter Sessions.
For the plaintiff in error, J. Victor D'Aloia.
For the defendant in error, William A. Wachenfeld, Felix Forlenza and C. William Caruso.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. This writ of error brings up the conviction of plaintiff in error for robbery at the Essex County Court of Quarter Sessions. The case is here on strict writ of error. The entire record of the proceedings at the trial is not printed, and we have only certain excerpts from the testimony set forth in a bill of exceptions signed by the trial judge.
Two points are argued by the plaintiff in error. The first concerns the propriety of admitting testimony concerning statements made by certain witnesses implicating the plaintiff in error in the robbery, which statements were not made in his presence. The second challenges the admission into evidence of a written statement made by a witness not in the presence of plaintiff in error. We deem that the same principles of law are applicable to both points and they will be discussed together.
As we gather it from the meagre record, the crime occurred on March 1st, 1935. Three of the participants in the robbery were apprehended shortly thereafter. They were indicted,
pleaded guilty and were sentenced in June, 1935, to terms of from twelve to fifteen years in prison. Plaintiff in error was not taken into custody until some years later and was brought to trial on June 7th, 1939. Two of the three who were sentenced in 1935 testified at the trial below as witnesses for the state, namely, Pentlicki and DeSantis, and their evidence was to the effect, it is said, that plaintiff in error participated in the hold-up with them. On cross-examination counsel for plaintiff in error confronted these witnesses with statements they had made on March 4th and March 5th, 1935, in which they gave an account of the crime but made no mention at all of plaintiff in error as a participant therein. These statements were admitted in evidence as Exhibits D-1 and D-2.
On redirect examination Pentlicki was permitted to testify that on March 7th, 1935, he had made a further statement in which he told of plaintiff in error's part in the robbery. DeSantis was permitted to testify that subsequent to his written statement of March 4th he had made an oral statement implicating plaintiff in error. A police officer was permitted to testify to these later statements having been made. And finally the written statement of March 7th by Pentlicki was admitted in evidence.
Plaintiff in error now claims that these rulings were in conflict with the rule that declarations made in the absence of a defendant are not binding upon him, citing State v. Newman, 73 N.J.L. 202, and other cases. It is insisted that this evidence was admitted as corroboration of the evidence given by the witnesses in question upon the stand, and as such was injurious, harmful and prejudicial.
The trial judge, in ruling upon an objection to a question asked Pentlicki based upon the statement, said: "I am not ruling on whether the written statement is going in evidence, but the defendant has had all kinds of latitude in impugning the integrity of the witness. The jury is now entitled to have the whole ...