Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
The sole issue raised by this appeal is whether the trial court committed error in permitting the prosecutor to cross-examine a defense witness concerning his arrest and indictment.
In the indictment charging Frank Falconetti and Alexander Golaszewski with having committed the crime of bookmaking on November 4 and 5, 1953, respectively, there were two counts charging the witness, John Arnone, with aiding and abetting both Falconetti and Golaszewski in the commission of the aforementioned crime at Arnone's premises.
At Falconetti's trial below, two inspectors from the Division of Alcoholic Beverage Control testified that they went to Arnone's tavern in the Borough of Red Bank on November 4, 1953, and, after ordering drinks, inquired of Arnone as to how a bet could be made, whereupon Arnone called the defendant Falconetti, introduced the inspectors, who made the bet on an entry running at the Garden State Race Track that afternoon, and a $6 bet was paid to Falconetti who placed the money in his pocket.
Falconetti's defense was based upon an alibi and Arnone, one of Falconetti's witnesses, testified that Falconetti was not in the bar all day on November 4. On cross-examination, the witness Arnone was asked whether he had not seen the inspectors on November 5, and having replied, "I don't remember offhand," the court permitted the State, over objection, to interrogate Arnone at some length about his alleged arrest on November 5, his subsequent indictment and accusation by the Alcoholic Beverage Control Department. After the series of questions were allowed over objection, the court cautioned the jury that the entire line of questions only were to be considered on the question of Arnone's credibility.
The cases dealing with the admissibility of evidence to show that a witness has been arrested or accused of crime, or the interrogation of a witness as to such fact, for the purpose of discrediting him, represent three distinct views or doctrines. That which has been most widely accepted and generally applied is that, except for the purpose of showing
interest or bias, or a motive to falsify, on the part of the witness, the fact of a prior arrest or accusation may not be shown or inquired into. This view has usually been based upon one or more of the following grounds or theories: that a mere unproven charge against the witness does not logically tend to affect his credibility; that such evidence or inquiry might unduly prejudice the jury against the witness and particularly so if he is the defendant; that one accused of crime is presumed to be innocent until his guilt is legally established; and that a witness may not be impeached or discredited by evidence of particular acts of misconduct.
The contrary view that such showing or inquiry is permissible, subject, in some instances, to certain limitations in respect of the nature of the action on trial, the mode or manner of showing, the form of the action or accusation against the witness, the nature of the offense charged against him, the time of the arrest or accusation, and the privilege of the witness to refuse to answer, has found support in a few jurisdictions.
Other courts, steering a middle course, hold that the showing or inquiry as to such arrest or accusation rests in the sound discretion of the trial court. 20 A.L.R. 2 d 1424.
The rule of exclusion of such matters on cross-examination of witnesses has been held to be subject to the exception that a witness in a criminal proceeding may be asked if he is not under indictment or arrest for a crime growing out of the same transaction as the case in which he is appearing as a witness, for the reason that the questions are designed to show interest of the witness in the case at trial. 58 Am. Jur. 755; 20 A.L.R. 2 d 1446.
More particularly, under the subject of impeachment of witnesses generally, it has been stated that as to accomplices of a defendant in a criminal action,
"It would be error to refuse permission to prove, as bearing upon the credibility of the accomplice, that no proceedings whatever had been instituted against him for the crime he had confessedly committed, although ...