On certified appeal from the Appellate Division of the Superior Court.
For reversal -- Justices Heher, Wachenfeld, Burling and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Jacobs. The opinion of the court was delivered by Heher, J. Vanderbilt, C.J. (dissenting). I am authorized to say that Oliphant and Jacobs, JJ., join in this dissent.
[16 NJ Page 75] Defendant was convicted in the Law Division of the Superior Court upon an indictment charging that he was guilty of criminal nonfeasance in that he did "continuously, unlawfully and wilfully" fail, neglect and omit, contrary to his public duty as a duly appointed patrolman
of the Rutherford Police Department, to suppress a disorderly house maintained on or about the first day of April 1948, and thereafter, at No. 256 Union Avenue, in the Borough of Rutherford, for gaming "by means of bookmaking on horses," in violation of law, and to bring about the prosecution of the offenders against the law, but, "on the contrary, then and there unlawfully did suffer gambling in the manner and form aforesaid," a common-law offense denounced by R.S. 2:103-1.
The accused interposed timely requests, four in number, for instructions to the jury that the testimony of the State's witnesses Bobrowski and Bologna be carefully weighed and scrutinized to determine whether in the particular circumstances, of which more hereafter, it was "influenced by strong hope of favor or pardon," and also to "consider the extent to which such testimony has been corroborated by other witnesses on the subject." In the Appellate Division counsel treated these witnesses as "in the same category as accomplices"; and the "rules applicable to the testimony of accomplices" were invoked. But the holding there was that the point was untenable for want of a "specific objection" to the refusal to charge as requested, "distinctly stating the matter objected to and the grounds for the objection," in accordance with what was deemed a requirement of Rule 1:2-19(a), now R.R. 1:5-1(a), and Rule 2:7-8(b), now R.R. 3:7-7(b), and, moreover, assuming these witnesses "were in the category of accomplices," the omission to charge the requests warning that their testimony "may have been influenced by a strong hope" of "favorable treatment" at the hands of the prosecuting authorities, and so should be given careful scrutiny, "considering, in particular, the extent of the corroboration," although such refusal was not the usual course, "is not a ground for a new trial, being solely a matter lying in the trial court's discretion"; and, in any event, the witnesses were not "accomplices in defendant's nonfeasance," and the jury had been "fairly and accurately instructed" as to the "applicable law," and the failure to
The case is here by certification at the instance of the accused.
The State called Bobrowski, his wife, Anna, and Bologna as witnesses, and from them adduced evidence tending to show this situation of fact: In March 1948, when they were fellow patrolmen in the Rutherford police department, the accused persuaded Bobrowski, as a means of gaining "easy money," to allow the use of his residence and home telephone facilities for bookmaking on horse races, in consideration of a weekly payment of $50, the telephone bill to be paid by the bookmakers. When Bobrowski indicated interest in the proposal, the accused brought one Lombardi to Bobrowski's home, and the result was an agreement, made in the presence of Bobrowski's wife, for the use of their residence and telephone for the prosecution of the criminal enterprise. The next day Lombardi and two others began operations on Bobrowski's premises. A day or two later, at the instance of the accused, Bologna, an electrician, and the accused's next door neighbor, installed a telephone extension in the basement of Bobrowski's residence by means of a "knife switch" on the telephone line, for the use of the "sitters," and for four weeks thereafter bookmaking was carried on there and the stipulated weekly price of $50 was paid to Bobrowski by the accused. But later on Bologna made a sworn categorical denial to the Bergen County grand jury of his part in the transaction; and he was indicted for false swearing, pleaded nolo contendere, and was awaiting sentence at the time of giving testimony in the case now before us. He conceded that he was hopeful of leniency as a result of his testimony in support of the State's case. Bobrowski also denied his complicity before the grand jury; and he, too, was indicted for false swearing, and was then awaiting trial on a plea of not guilty. But he also admitted that he hoped to receive favorable consideration as a reward for his testimony against the accused.
It is settled law in New Jersey that a jury may convict a prisoner upon the testimony of an accomplice alone, if, in their judgment, it is entirely credible and worthy of belief. But the testimony of an accomplice is given close scrutiny. Accomplices, tainted as they are with confessed criminality, are often influenced in their testimony by the strong motive of hope of favor or pardon; and so it is incumbent upon the courts to "look carefully into the secret motives that might actuate bad minds to draw in and victimize the innocent." State v. Hogan, 13 N.J. Misc. 117 (Sup. Ct. 1935), affirmed 115 N.J.L. 531 (E. & A. 1935). The fact that co-conspirators have turned "State's evidence" naturally affects "injuriously the credit to be given to their testimony"; for it is "suggestive, at least, of a bargain between them and the state authorities with relation to the punishment which would be inflicted upon them in case their testimony aided in bringing about" the conviction of the accused. State v. Black, 97 N.J.L. 361 (Sup. Ct. 1922).
The basic question is one of interest. Interest is no longer a disqualification; but it is a circumstance that may be used to impeach the witness. The interest of a party or a witness in the event of the cause is a factor to be considered in assessing his credibility. At common law a witness was rendered incompetent to testify by reason of interest in the outcome of the action; and, while the incompetency has been removed, the bias that such interest would occasion is still to be reckoned with in determining the probative force of the testimony. Every fact or circumstance tending to show the jury the witness' relation to the case or the parties is admissible to the end of determining the weight to be given to his evidence. Trinity County Lumber Co. v. Denham, 88 Tex. 203, 30 S.W. 856 (Sup. Ct. 1895); Wigmore on Evidence (3 d ed.), sections 526, 966.
It bears against a witness' credibility that he is an "accomplice in the crime charged" and testifies for the prosecution; and the " pendency of any indictment against the witness indicates ...