On appeal from the Mercer County Court, certified by this court on its own motion.
For affirmance -- Chief Justice Vanderbilt and Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justices Heher and Brennan. The opinion of the court was delivered by Vanderbilt, C.J.
[17 NJ Page 229] On May 19, 1953, the Hamilton Township police in conjunction with detectives from the Mercer County Prosecutor's office conducted a raid on the
defendant's workshop located to the rear of his home. They proceeded to the second floor and broke into a small room where they discovered a short wave radio and various papers and paraphernalia that strongly indicated that bookmaking activities were being carried on there. While the police were searching the room the telephone rang several times, and each time the police answered it the caller attempted to place bets on horse races. Julius Erdie was arrested in the room and has since been convicted of bookmaking.
While the raid was in progress the defendant arrived on the scene and when questioned by the police denied knowledge of any bookmaking activities. The police took him to their headquarters, booked him for investigation and shortly thereafter filed a complaint against him for permitting a lottery on the premises. The defendant voluntarily signed a statement in which he said that some five months before Erdie had approached him and offered $35 a month to rent the second-floor room as an office in his business as a general contractor. An agreement was reached and shortly thereafter either Erdie or a man identified by the defendant as "the Count" would frequent the room daily, arriving around noon each day and then leaving in the evening. In his statement the defendant gave a detailed description of "the Count":
"I'd say he's a man about 5'7" tall, weighs approximately 145 to 150 pounds, has a pencil mustache that runs across the middle of his upper lip, I'd say he's a man aged in the middle fifties, I'm not sure, his complexion is on the tan side, I never saw him without a hat, he never wore glasses, I never seen him with glasses, he was very clean shaven, I'd say his beard would be on the dark side, he was always in sporty clothes, sport shoes, sport slacks, sport coat, sport hat, whatever kind of hat he had, sometimes a tan jacket, different colored slacks, he had blue slacks, a gray sport coat and he had shoes to match, mostly a sport shirt, with no tie. He was gray on the temples. I don't know whether he was gray headed, dark headed or not. I'd say he was medium built. He's on the nervous side, too. The only time I ever saw him smoking was once he was smoking a cigar."
From a group of ten photographs he selected two pictures of "the Count" and one of Erdie, identifying them as the two men conducting the activity in the second floor room.
"The Count," whose real name was Albert Matalena, was picked up by the police and charged with bookmaking. He asked for a preliminary hearing, which was held in the Hamilton Township Municipal Court. At this hearing the State relied heavily on the defendant's testimony, assuming that he would testify to the facts set forth in the statement he had signed at police headquarters. Instead, at the hearing on June 4, 1953 the defendant testified under oath before the magistrate that he had never seen Matalena at his workshop and did not know him. At the continued date of the hearing on June 9, 1953 the defendant upon being confronted by Matalena testified, "I have never seen him."
The Mercer County grand jury handed down an indictment in four counts, counts one and two charging the defendant with perjury and false swearing respectively at the hearing on June 4, 1953, and counts three and four charging perjury and false swearing respectively at the hearing on June 9, 1953. At the conclusion of the State's case the trial court dismissed counts one and three for perjury on the ground that the State had failed to prove all of the necessary elements of that crime. The remaining two counts for false swearing were submitted to the jury, which found the defendant "guilty on both charges." On May 21, 1954 the court sentenced the defendant to the New Jersey State Prison for a term of not more than three nor less than two years and imposed a fine of $1,500. On July 6, 1954 the trial court reconsidered its sentence and reduced the fine to $1,000, but did not alter the prison sentence. The defendant's appeal from the judgment of conviction was certified by us on our own motion while pending in the Appellate Division.
(1) The State moves to dismiss the appeal for want of prosecution under R.R. 1:4-2(a) and (b) because of the defendant's failure to file and serve his brief and appendix within the period set forth in the rules of court. Although we might well dispose of this appeal on that ground, we will discuss the various points raised here, none of which requires a reversal of the judgment below.
(2) After the jury returned to the courtroom the foreman announced that they found the defendant guilty on both charges. The judge ordered the clerk to poll the jury and he did so in the approved manner, requiring each juror to answer "yes" or "no" as to whether his or her verdict was that announced by the foreman, State v. Myers, 7 N.J. 465, 483 (1951); State v. Vaszorich, 13 N.J. 99, 129 (1953), certiorari denied 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953). Eleven of the jurors answered in the affirmative, but upon the poll of Mr. Timm, juror No. 4, the following took place:
"Mr. Frome: George C. Timm, the verdict as announced by your Foreman is as follows: We find the defendant guilty as charged. Is that your verdict? Answer yes or no.
Mr. Timm: Sir, your Honor please, the Court, may I ask a question as I see fit or answer yes or no?
The Court: The question is very clear and simple, Mr. Timm, and you will have to answer it directly in response to the Clerk's question.
Mr. Katzenbach: Your Honor please, I take ...