On error to the Passaic County Court of Quarter Sessions.
For the defendant in error, Arthur C. Dunn, Prosecutor of the Pleas (Peter J. McGinnis, Assistant Prosecutor, of counsel).
For the plaintiff in error, Louis C. Friedman (John Drewen, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
[130 NJL Page 179] BROGAN, CHIEF JUSTICE. Plaintiff in error, Raymond J. Dwyer, was convicted of conspiracy in the Passaic County Quarter Sessions. With him were indicted one Joseph G. Sproviere and three others of unknown names, designated as John Doe, Richard Roe and Jane Doe. The case against Sproviere was dismissed at the end of the state's case for lack of proof. The appeal is before us on assigned errors and also for general review under the statute, N.J.S.A. 2:195-16, under which by the intendment of the statute the entire record of the proceedings had upon the trial should be returned by the plaintiff in error, certified by the trial court, together with the writ of error and the bill of exceptions.
The assignments of error, twelve in number, are argued under seven separate points. There is an eighth point which must have our attention and decision before any of the assigned errors may be considered. That point has to do with whether the plaintiff in error shall have the benefit of a general review on this appeal in view of the fact that the entire record of the proceedings had upon the trial was not returned with the writ of error. At least one-half, perhaps more -- we have no way of knowing -- of the stenographic transcript of the proceedings of the trial is missing.
Four days were required to try the case, beginning on June 15th, 1942. The trial judge has certified such part of the proceedings had upon the trial as appears in the state of case now before us and in his certificate states he is unable "to certify the entire record of the proceedings * * * because the official stenographic record of said proceedings * * * are not complete, inasmuch, as I am informed and verily believe, the original stenographic notes were stolen from my chambers between November 12th and 18th, 1942, during the time that they were being reduced to typewriting by said stenographer." And an affidavit of the stenographer, Mr. Turner, states that he had started on the task of transcribing his notes and "had about one-third of said trial record of the case transcribed" when he ascertained that all of the stenographic notes were stolen from the library table in the chambers of Judge Davidson who presided at the trial of the case; that he does not know who stole these records and the fact that they were stolen accounts for his inability to transcribe the entire record of the proceedings had at the trial in the case of State v. Dwyer et al., and that the theft occurred some time between November 12th and 18th, 1942.
In the record before us then there is a transcript of the proceedings and the testimony of the witnesses for the first trial day. Certain minutes of the trial court (i.e., the judge's pencil notes of the trial as it progressed) indicate that two additional witnesses were heard on the second day and that one witness, Joseph Bozzo, who had testified on the previous day, was recalled to the witness stand. The memoranda of the judge reveal that eight other witnesses called by the state
also testified on the second day; that on the third day Bozzo was again recalled and one other witness for the state; and that on the fourth day four witnesses testified on behalf of the defendants and three for the state in rebuttal. Thereupon the case was closed.
The basis of the indictment is the publication and distribution of an alleged defamatory photograph with printed comment that was published and circulated in an election contest in the City of Paterson. The photograph was a picture of William Furrey, a candidate for the office of mayor, and Joseph Bozzo. The picture and the subjoined printed matter were intended to injure Mr. Furrey as a candidate for office. It is said in the state's brief that the photograph was a "counterfeited representation" and that three expert witnesses had so characterized it. The testimony of these three witnesses does not appear in the state of case before us. This evidence is of manifest importance as well as that of the other witnesses produced by the state. The testimony of the witnesses produced by the defendant is of equal importance and the cross-examination of all of them.
It is further said that the writ of error was sued out on June 16th, 1942 (a manifest error, June 26th was intended), and that the sum of $300 was deposited with the stenographer on August 24th. A motion in this matter was argued before us at the October term of the Supreme Court (1942), the application being to dismiss the writ of error for failure of diligence. This motion was denied and a counter-motion for continuance granted. At that time it was represented to us that the transcript was ordered July 21st, 1942, and the deposit to cover the cost of same advanced to the stenographer on August 25th, but that the stenographer had not yet turned out the record.
There is no provision in our statutes comprehending the contingency of the loss in whole or in part of the "entire record of the proceeding had upon the trial" or its spoliation. Recourse to the common law supplies no aid in this inquiry because at the common law error was assignable only on the strict record. A bill of exceptions was ...