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State v. Toscano

Decided: October 26, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES V. TOSCANO, JR., DEFENDANT-APPELLANT



For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[13 NJ Page 420] The defendant was convicted in the Bergen County Court on an indictment which charged false swearing in violation of R.S. 2:157-4. He appealed to the Appellate

Division and the cause has been certified to this court under R.R. 1:10-1(a).

On May 11, 1951 Charles Astore, John McLaughlin, William Malone and Joseph Mello were indicted for bookmaking. On the same day Anthony Astore, a brother of Charles Astore, was also indicted for conspiracy to make book at the residence of Russell Pontilli. The defendant, an attorney-at-law, had theretofore represented the Astores and appeared with them at their arraignment on May 11. On May 31, 1951 the defendant appeared, pursuant to subpoena, before the grand jury which was investigating gambling activities in Bergen County. He was duly sworn as a witness and testified without raising any objection or claim of privilege. He stated that he was representing the Astores and was first interrogated with reference to an appearance he had made in 1950, in the company of Charles Astore and McLaughlin, Malone and Mello, before the Kefauver Committee at Foley Square, New York City. He testified that Charles Astore had called and asked him to represent him before the committee and that some time later McLaughlin, Malone and Mello came to his office. Immediately thereafter he testified that although Charles Astore had come to his office the other three had not come to his office but had telephoned him. In fact, the other three neither telephoned him nor did they come to his office; Charles Astore had retained him to appear and later asked him also to represent the other three. The defendant did not see or speak to McLaughlin, Malone or Mello prior to the date of their appearance before the committee.

The defendant was next interrogated before the grand jury with respect to the posting of bail for Russell Pontilli. He testified that he gave his personal check for the bail bond and was paid by Pontilli's partner "Mr. Capelli or Mr. Capasoli; I don't know his name." He denied that Astore paid him for the bond and reiterated that Pontilli's partner named Capelli or Capasoli, and whom he did not know, had made the payment. In fact, Anthony Astore had paid for the bail bond and neither Pontilli, a janitor at the

Washington School nor Passoretti, another janitor who worked with him at the school and was known as his partner, made any payment towards the bail.

In June 1951 the defendant was indicted for false swearing in violation of R.S. 2:157-4. In substance, the first count charged that the defendant swore falsely when he testified that McLaughlin, Malone and Mello had called him; and the second count charged that he swore falsely when he testified that the man who paid the bail bond premium was Passoretti, Pontilli's partner, a man whom he did not know. In December 1951 the defendant voluntarily appeared and made a sworn statement before the Deputy Attorney-General and in the course thereof he admitted the falsity of his testimony and disclosed the true circumstances. Cf. State v. Kowalczyk, 3 N.J. 51 (1949). At the trial he did the same but sought to exculpate himself on the ground that when he appeared before the grand jury he mistakenly conceived that he owed a duty to his clients, the Astores, to conceal the real facts with respect to the identities of the person who retained him to represent McLaughlin, Malone and Mello and the person who furnished the bond premium for Pontilli. The trial court submitted to the jury the issue of whether the defendant did willfully swear falsely and, after the verdict of guilty was returned, declined to set it aside. On the present appeal the defendant advances several grounds of alleged error which will be considered seriatim.

I.

The first contention is that the grand jury "had no legal existence" because it compelled the defendant to testify as to matters which were privileged and tended to incriminate him. We find no basis whatever for this position. The grand jury was at all times legally constituted, was properly engaged in an investigation of gambling activities in Bergen County, and duly issued its subpoena to the defendant. He appeared as a witness and was interrogated on matters which were sufficiently related to the investigation. See In re

Pillo, 11 N.J. 8, 17 (1952). Cf. R.S. 2:157-6 -- now N.J.S. 2 A:131-6. If any of the questions addressed to him sought to elicit information which was immune from disclosure either under the privilege against self-incrimination or the attorney-client privilege, he could have asserted the claim of privilege and refused to answer. He did neither but, instead, answered the questions falsely. This course was entirely beyond the pale of law and morals and subjected the defendant to prosecution for false swearing without regard to whether the information was privileged. Cf. People v. Doe, 226 Mich. 5, 196 N.W. 757, 759 (Sup. Ct. 1924), where Justice Fellows noted that he did "not think the question of privileged communications is involved in this case. The plaintiff in certiorari was not committed for refusing to answer questions, but was committed for answering questions falsely and evasively."

The history, policy and limits of the privilege against self-incrimination and the attorney-client privilege have been extensively dealt with elsewhere. See 8 Wigmore, Evidence (3 d ed. 1940), 276, 542. See also In re Vince, 2 N.J. 443, 455 (1949); Board of Health of Weehawken Tp. v. New York Central R. Co., 10 N.J. 284, 288 (1952); In re Pillo, supra; Matthews v. Hoagland, 48 N.J. Eq. 455 (Ch. 1891); State v. Loponia, 85 N.J.L. 357, 360 (E. & A. 1913); State v. Krich, 123 N.J.L. 519 (Sup. Ct. 1939). Although our State Constitution contains no express provision embodying the privilege against self-incrimination, it is firmly embedded in our common law and has been codified in our statutes. Board of Health of Weehawken Tp. v. New York Central R. Co., supra. It is a personal privilege which must be asserted by the witness; if the testimony is given without claim of the privilege, it is permanently waived. See Wigmore, supra, 388. Furthermore, the claim of privilege may be overruled by the ...


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