Eastwood, Bigelow and Horuvitz. The opinion of the court was delivered by Horuvitz, J.c.c. (temporarily assigned).
The defendant Nagy was indicted by the Middlesex County Grand Jury on two counts, the first charged breaking and entering, N.J.S. 2 A:94-1, the second charged larceny, N.J.S. 2 A:119-2. Upon the trial of the indictments on September 15, 1952 the defendant was found guilty on both counts and thereafter sentenced from three to six years in the New Jersey State Prison. He pursues his appeal to this court in due season, and charges prejudicial error by the court below on one ground, that is, permitting the State to put into evidence as part of its main case a confession containing unconnected prior convictions of crime. Parenthetically, it should now be noted that at a later stage in the trial the defendant took the stand in his own behalf, but the record is barren of any examination as to prior convictions. The previous convictions were presumably introduced for the purpose of showing either a propensity toward crime or affecting the credibility of the defendant.
Pursuant to Rule 2:12-7, objection was duly made and grounds therefor stated. Thus, both the State and the court,
during the conduct of the trial, were apprized of the objection and the reasons upon which it was predicated. It is singular to note that neither an offer was made by the State, nor a direction made by the court to excise from the body of the confession the separable objectionable portion thereof. This could have been accomplished without difficulty, 22 C.J.S., Criminal Law, section 820.
The confession contained, besides references to prior convictions, allusions to a series of arrests -- an objectionable, though not objected to feature which, if urged here, would have precipitated a reversal. Cf. State v. Quinlan , 86 N.J.L. 120, 91 A. 111 (Sup. Ct. 1914), affirmed 87 N.J.L. 333, 93 A. 1086 (E. & A. 1915); Micheleson v. U.S. , 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1918); State v. Dietz , 5 N.J. Super. 222, 68 A. 2 d 777 (App. Div. 1949). Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a defendant accused of crime. It happens to the innocent as well as the guilty. Only a conviction may be inquired about to undermine the credibility of one accused of crime.
During the presentation of the State's case in chief, testimony of certain State's witnesses on the question of the voluntariness of the confession was heard in the absence of the jury and the point decided adversely to the prisoner. The jury was recalled and the confession was read into the record as part of the State's case. The emasculated record does not disclose whether the defendant had the opportunity to offer himself as a witness solely on this score. Such would have been proper practice. It does appear that when he took the stand in his own behalf that he demurred to the method used to secure the conviction.
The question thus posed for determination is whether the State on its case in chief, through the vehicle of a confession, may introduce into evidence prior convictions of a defendant to show either propensity to crime or to affect his credibility as a witness, where no examination is directed to such either in the direct or cross-examination of the defendant, who was produced as a witness for himself.
The State urges that it was entitled to have the confession, signed as it was by the defendant, placed before the jury, and that the inclusion thereof of something otherwise admissible did not invalidate the confession. The lone pertinent authority urged by the State for this strange theory is State v. Lasowski , 4 N.J. Misc. 489, 133 A. 415 (Sup. Ct. 1926), but a careful examination of this case reveals a factual situation containing a difference between it and the case at bar which is compelling.
In the cited case the defendant was convicted upon an indictment based on section 115 of the then Crimes Act, now N.J.S. 2 A:138-1, charging carnal abuse of a child under the age of 12 years. One of the grounds promulgated for reversal was the allowing of the child's mother to state a conversation had with the defendant involving evidence of a crime committed by the latter with another one of her children. The court refused reversal on this ground, stating that the trial judge in admitting it cautioned the jury that so far as it related to the other child, it was not evidential and to disregard it in that respect. No such admonition attended the reception of the objectionable portion of the evidence in the present case. In the Lasowski case the court further found that an examination of the testimony given by the mother showed that the conversation included both children collectively and could not be subdivided. Not so here. The portion of the confession in the case at bar could easily have been expunged without affecting the balance thereof. It therefore follows that the cited case cannot be relied on to support the State's contention. The State further asserts that the defendant suffered no manifest wrong or injury within the contemplation of the Rules 1:2-19 and 4:2-6, because the trial judge stated to the jury that conviction of a crime can be shown only to affect the credibility of the defendant. This casual reflection is hardly curative, if in fact the action complained of was wrong. 16 C.J., Criminal Law, section 2487, 23 C.J.S., Criminal Law , § 1314.
A. AS TO AFFECTING THE CREDIBILITY OF ...