On certiorari and motion to quash.
For the State of New Jersey, Horace K. Roberson, Prosecutor of the Pleas of Hudson County, and William P. Gannon, Assistant Prosecutor.
For the defendant, Maurice C. Brigadier.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. J. Owen Grundy was indicted by the December, 1944, Hudson County grand jury for the offense of perjury charged as having been committed before the April, 1943, grand jury. The indictment alleged that
while the 1943 grand jury was considering a complaint against Grundy and John R. Longo for fraudulent alteration of election records Grundy "did appear and was produced as a witness for and on behalf of the State of New Jersey and against the said John R. Longo;" that Grundy took oath that the evidence which he should give between the state and Longo should be the truth, the whole truth and nothing but the truth; that Grundy was asked whether, in association with Longo, he had altered the voting records of Longo and whether he, the witness, had ever before seen a certain record; that the witness answered both questions in the negative; that the answers were given knowingly, falsely, corruptly and willfully; that the inquiries were material and that Grundy did thereby commit willful and corrupt perjury.
The movant advances as reasons why the indictment should be quashed that public policy so requires; that the indictment is violative of the right of the accused, both at common law and under the statute, to protection against self-incrimination; that the indictment fails to state that the defendant testified voluntarily before the April, 1943, grand jury; that there was no evidence before the December, 1944, grand jury upon which the indictment could be predicated; and that the grand jury manifested personal bias, prejudice, partiality and partisanship against the defendant Grundy.
This state has no constitutional provision regarding immunity of a witness from answering questions, the answers to which tend to incriminate him. The common law rule that no person can be compelled to be a witness against himself is still the rule of our courts in the admission of evidence in criminal cases. State v. Miller, 71 N.J.L. 527, 532; State v. Zdanowicz, 69 Id. 619, 622. It is reflected in our statute, R.S. 2:97-6, et seq., the pertinent provision of which is: "(7) No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate." The immunity is a privilege which may be waived, and it is for the witness to claim his privilege of exemption from testifying in disparagement of himself if he so desires. Fries v. Brugler, 12 Id. 79; State v. Mohr, 99 Id. 124.
There is nothing in the record to indicate that Grundy was under any compulsion or that he did not appear voluntarily and testify to that which is now charged against him. The movant contends that compulsion is implicit in the words of the indictment -- Grundy "did appear and was produced as a witness for and on behalf of the State of New Jersey and against the said John R. Longo" -- but we do not give those words that interpretation. The recital in the indictment is that Grundy was sworn to give evidence between the state and Longo. If the inquiry was indeed being made in the cause of State v. Longo, it required no voluntary action on Grundy's part to appear before the grand jury. If, on the other hand, there was a ruse by which it was sought to induce Grundy, unwittingly, to give evidence against himself, that is not made to appear before us. We think that the indictment is not faulty on its face in that it did not negate the use of compulsion or allege the voluntary appearance of the witness.
It is a recognized policy in the law that an accomplice or co-defendant who assists the state by giving evidence against another may receive some beneficial recognition, the form of which is not thoroughly established. State v. Graham, 41 N.J.L. 15. But the present indictment is not such a circumstance; it sets up a crime distinct from the one in which Grundy and Longo are said to have been associated and with respect to which Grundy might expect to receive leniency because he gave assistance in the state's case against his accomplice. In the latter case there was a joint indictment against Grundy and Longo for altering public records. Grundy pleaded guilty to that indictment and testified at the trial against Longo. Grundy's assistance to the state was rewarded in the fact that sentence upon him was suspended whereas Longo was sentenced to the state's prison for a term of years. We are asked, and decline, to declare as a matter of law that public policy prohibits an indictment for ...