On appeal from Superior Court, Law Division, to Appellate Division, and certification by this court of its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
In March 1952 a Burlington County grand jury investigating alleged corrupt protection by public officials of illicit gambling activities asked 13 questions of James Christy and 44 questions of Patsy Pillo which the witnesses, asserting the privilege against self-incrimination, refused to answer. The State brought the instant proceedings in the Law Division to secure orders directing them to answer.
After a hearing at which the State agreed not to press for an order as to six of the questions put to Pillo and Pillo agreed he would answer three others, orders were entered adjudging that Christy was not to be compelled to answer any of the questions put to him, and that Pillo was to answer only five of the 35 questions remaining at issue in his case. The State took appeals to the Appellate Division, which appeals we certified of our own motion.
Christy and Pillo challenge the State's right to appeal. The challenge has no merit. The orders are not adjudications upon charges of criminal contempt. Until the witness refuses to obey a court order directing him to answer there is no basis for a finding of guilt or innocence of criminal contempt. In re Schwartz, 134 N.J.L. 267 (E. & A. 1946). Thus there is no relevancy to their argument that only a "summary conviction and judgment" in criminal contempt is made appealable by N.J.S. 2 A:10-3 and Rule 1:2-18 A, and that the State's right to appeal final judgments in criminal causes under Rule 1:2-3, made applicable to the Appellate Division by Rule 4:2-6, is not to be construed to authorize appeals to the Appellate Division from the instant orders. Nor are the orders non-appealable interlocutory orders, as they contend. If the orders stand they terminate the proceedings as to the questions at issue and so are final in quality appealable to the Appellate Division
under Rule 4:2-1(a) as final judgments entered in a Trial Division. And see In re Vince, 2 N.J. 443 (1949).
The grand jury's investigation followed the publication in a newspaper, the Florence Township Post, of an affidavit of one George Louis Page alleging in substance that public officials had corruptly taken money and permitted gambling games and gambling places to be operated in the county. Among other places the affidavit dealt with the operation of the Maple Shade Casino, a notorious gambling place which was raided and closed in July 1949. Page testified for the State at the hearing below and gave evidence that upon his appearance before the grand jury he repeated the charges made in his affidavit and involved Christy in the operation of the Maple Shade Casino. He was unable or unwilling to say, however, whether he had also involved Pillo.
All of the questions put to Christy and all but nine put to Pillo concerned their activities before the year 1950. Many were directed specifically to the part each played in the operation of Maple Shade Casino or to the parts played by certain named persons. Of the nine questions asked Pillo which were not expressly limited to the time before 1950, seven inquired "do you know" named individuals, and the remaining two were: "Q. 33. Did you ever deliver any money for him (Fred Pillipoldi) to be delivered to Tony Marinella?" and "Q. 35. Did you ever hand any money to George Page to be delivered in connection with the operation of the Maple Shade Casino?"
The privilege against self-incrimination was developed by the common law. Historically its roots are found in the resistance of Englishmen to the so-called oath ex officio of the ecclesiastical courts. E. M. Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (Dec. 1949). In modern concept its wide acceptance and broad interpretation rest on the view that compelling a person to convict himself of crime is "contrary to the principles of a free government" and "abhorrent to the instincts of an American," that while such a coercive practice "may suit the
purposes of despotic power, * * * it cannot abide the pure atmosphere of political liberty and personal freedom." Boyd v. United States, 116 U.S. 616, 632, 6 S. Ct. 524, 29 L. Ed. 746, 751 (1886). If as some think, the decision of the United States Supreme Court in Mason v. United States, 244 U.S. 362, 37 S. Ct. 621, 61 L. Ed. 1198 (1917), unduly contracted the scope of the privilege, recent decisions of that court, Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), Brunner v. United States, 343 U.S. 918, 72 S. Ct. 674, 96 L. Ed. (1952), Greenberg v. United States, 343 U.S. 918, 72 S. Ct. 674, 96 L. Ed. (1952), have been criticized as representing extreme and over generous interpretation and application of it. Falknor, Self-Crimination Privilege: Links in the Chain, 5 Vanderbilt L. Rev. 479 (April 1952).
The federal decisions interpret and apply the privilege as incorporated in the Fifth Amendment to the Federal Constitution. That amendment does not apply to the several states. In re Vince, supra. Indeed, since the decision in United States v. Murdock, 284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210 (1931), in which the Supreme Court refused to extend the Fifth Amendment privilege to a witness who might face state prosecution on matters incidentally revealed by a federal inquiry, it has generally been considered settled that the privilege against self-incrimination does not extend to protect the witness as to matters that may tend to incriminate him under the laws of another jurisdiction. Annotation, 82 A.L.R. 1380, supplementing 59 ...