On appeal from the Bergen County Court, Law Division.
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 Wachenfeld, J.
The defendant, a member of the bar of New Jersey, was convicted of the crime of subornation of perjury in the Bergen County Court.
The indictment, inter alia, charged that he, on the 13th of June 1951, procured Victor Nicoletta to commit corrupt and willful perjury before the Bergen County grand jury in its investigation concerning violation of gambling laws in said county and unlawfully persuaded Nicoletta, upon his being called as a witness, to depose falsely under oath in a matter material to the issue then being considered by the grand jury, that he, Nicoletta, had on his own behalf, on or about March 15, 1951 and other dates, at Fairview, New Jersey, kept and operated a slot machine used in gambling for money prizes and that one Albert Capuzzi had no part in the keeping or operation of such gambling device, whereas in fact the defendant Caporale well knew that said Capuzzi participated with Nicoletta in the operation of said machine and the sharing of the receipts of said machine, whereby he suborned willful and corrupt perjury in violation of R.S. 2:157-1, now N.J.S. 2 A:131-1.
A synopsis of the evidence presented by the State reveals that Nicoletta testified Capuzzi was involved with him in the maintenance and operation of the machine and that from 1949
to the date of his arrest they weekly had split between them the loss on the pay-offs and the profits on the collection of moneys by the machine. He admitted he lied to the grand jury in testifying before it that Capuzzi had no part in the pay-offs, whereas in fact Capuzzi and he had split the losses and the collections.
He was suborned, he testified, on June 13, 1951 to commit such perjury by the defendant Caporale, who was fully cognizant of the true facts disclosed to him by Nicoletta. The defendant urged Nicoletta to assume full responsibility for the operation, maintenance and use of the machine for gambling purposes and to involve no one else, assuring him there was no need to worry about committing perjury in this respect as they "would take care of everything."
The State's second witness was Victoria Nicoletta, wife of Victor, who corroborated the testimony given by her husband that Capuzzi received his split on the receipts from the joint operation of the machine. She worked in the restaurant premises, had opportunity to observe the transactions between her husband and Capuzzi, and once or twice personally negotiated the split of the profits with the latter.
There was an exhibit, S-2, indicating a record of pay-offs. This memorandum, it was testified, was kept by the Nicolettas so that it could be shown to Capuzzi at the time of the settling of their financial transactions.
After judgment and the imposition of sentence, the defendant appealed to the Appellate Division and we certified the cause here on our own motion.
Two points are raised on appeal: first, it was error for the court to deny the defendant's motion for a judgment of acquittal at the end of the State's case because the purported corroborative evidence as to the commission of the perjury was legally insufficient, and, secondly, the verdict was contrary to the weight of the evidence.
The first point, in addition to the ground already stated, is premised upon the further underlying contention that Mrs. Nicoletta's testimony is so vague, ambiguous and indefinite as not to meet the standards and requirements of
the corroboration rule, plus the fact that the common law concept of unity of husband and wife excludes her evidence as corroboration required by law, on the theory that it is not proof emanating from an independent source distinct and separate from the evidence furnished by the alleged perjuror.
The requirement of corroborative evidence was discussed at length by Justice Brennan in State v. Bulach, 10 N.J. Super. 107, 110-111 (App. Div. 1950), wherein he said:
"The requirement in perjury cases of corroborative evidence of the testimony of a single witness, an exception to the rule that one witness' testimony suffices in most cases, has been criticized by text writers and some courts. VII Wigmore on Evidence (3 rd ed. 1940), sections 2040, 2041; Annotation, 111 A.L.R. 825. However, the requirement is firmly embedded in our law. State v. Taylor, [5 N.J. 474] (1950); Zabriskie v. State, 43 N.J.L. 640, at [ page ] 647 (E. & A. 1881); State v. Lupton, 102 N.J.L. 530 (Sup. Ct. 1926); State v. Ellison, 114 N.J.L. 237 (Sup. Ct. 1935). This does not mean that the testimony of two witnesses is required; the testimony of one witness plus proofs corroborating his evidence suffices. The two witness rule obtaining in some states probably was not followed at any time in New Jersey, Zabriskie v. State, supra.
The court there also held, on the defendant's motion for acquittal at the end of the State's case, it was a question for the court in the first instance whether the corroborative evidence offered to support the State's testimony was legally sufficient, relying on State v. Lupton, supra, and Gordon v. State, 48 N.J.L. 611 (E. & A. 1886).
The prosecution accepts the principle as enunciated in State v. Bulach, supra, but says much of what is stated regarding "proof of strong corroborating circumstances" applies only where there is direct proof merely by oath of a single witness as to the falsity of the testimony ...