On certified appeal from the Law Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting).
This appeal was taken by the defendant to the Appellate Division of the Superior Court from a judgment of conviction for the crime of false swearing (N.J.S. 2 A:131-4) entered after trial by jury in the Law Division of the Superior Court and certified by us while pending below.
The defendant, the Chief of Police of the City of Vineland, was indicted by the Cumberland County Grand Jury for falsely swearing as to the evidence he discovered on a gambling raid. It appears that on March 26, 1953 the defendant and Patrolman Joseph Callavini, acting on information which led the police to suspect that one Louis Levenberg was taking bets on the outcome of horse races or, in the vernacular, "making book" at his "art school" on Landis Avenue in
Vineland, raided his establishment. According to Callavini, while both he and his superior were searching for evidence that would prove the book-making activity in the premises, the telephone rang. The defendant answered it and began to write "horse bets down on the paper." The defendant clarified the occurrence. He stated that when he answered the telephone the caller asked for "Lou." When he said that he was "Lou," the caller, evidently becoming suspicious, hung up. The defendant, hoping to lure Levenberg into admitting that he was bookmaking, pretended the caller was still on the wire, reached for the notebook and began to write down fictitious horse bets. When the defendant hung up the telephone, Levenberg said "You didn't take no bet for me to book, because I am not a bookmaker."
The main issue arises in connection with the property found on the premises. For the State Callavini testified that, in addition to a newspaper, a racing form and a small portable radio found in the premises, the defendant found betting slips; that the slips when he first saw them were "on the desk," but that he actually didn't "know where he [the defendant] found them"; that he carried the radio and the chief carried the racing forms, the newspaper and the betting slips.
Levenberg was arrested and taken to police headquarters, where he insisted to the police upon further interrogation that he was not a bookmaker, but a bettor who had been placing bets with a bookmaker by the name of Reuben. Acting on the information supplied by Levenberg, the defendant and Callavini raided Reuben's premises and arrested him, but discovered no evidence there.
Both Levenberg and Reuben were subsequently arraigned on April 6, 1953 before Municipal Magistrate Frank J. Testa on charges of bookmaking. The defendant testified as a complaining witness under oath before the magistrate. No stenographic record of that hearing was made but the magistrate testified at the trial that "he [the defendant] said that he found nothing but a racing form and a morning newspaper, and so I asked him whether he found any slips
or any other thing that might indicate to him gambling was going on, and he seemed to be apologetic and raised his hand like this (indicating) and said, 'I don't know why I raided this place.' He said something about expecting to find someone else there. That is all he found." The court clerk corroborated the magistrate's version. The case against Levenberg was dismissed by the magistrate. At the trial, the defendant categorically denied that the search produced anything more than he had testified to on the arraignment and he was equally positive that he had told the magistrate that a radio was seized.
In opening to the jury the prosecutor announced that the State was prepared to show that there was a report made up for the police department's own use and put in its files, that the report stated the fact that betting slips had been found, and that when a demand was made by the State Law Enforcement Council on the defendant, as the then chief of police, for police reports of all gambling raids, the report suddenly disappeared and that "in its place was a report dictated by S. Grill D'Ippolito to Officer Callavini, who was on the raid, but in that report there was no mention made of any betting slips or of any telephone calls, and that that was the report which was submitted to the Law Enforcement Council of what happened at the time of the raid."
During the progress of the trial the prosecutor made extraordinary efforts to prove the facts asserted in his opening. His initial effort was thwarted because of his failure to lay the necessary foundation for admission of a copy instead of the original report. He suspended his examination of Callavini in order to establish by the testimony of two other officers in the Vineland Police Department that a copy of the report had been made and that the original had disappeared. In the process of so doing the prosecutor indicated to the court in the presence of the jury that this report made by Callavini was:
"* * * certainly corroborative and demonstrative evidence to the jury to corroborate the testimony of Callavini as to what did take place there that day, which we are entitled to present to the
jury, and in the third place I think as part of the evidence in this case showing that there was false testimony is the evidence that this report disappeared from the files and another report was substituted, which we will show by Callavini's testimony was dictated by the chief of police and substituted in its place."
His subsequent efforts at obtaining its admission were struck down by the trial court for the reason that the report was "not the best evidence," because Callavini had been able to testify from his own recollection of the events that occurred, that Callavini could not corroborate his own testimony by written statements, which were the product of his own work and that it was in the nature of a self-serving declaration. The prosecutor still attempted to prove by Callavini that a substitute report had been dictated by the defendant, but was stopped by the court.
It was subsequently brought out by testimony of the defendant himself on redirect examination that he had suggested to the Law Enforcement Council that it should have copies of all police reports in gambling cases and that he then instructed Sergeant Stickert of his department to get out these reports for the Council's representative. When it was discovered that there was no report in the Levenberg file, he directed Callavini to make one out to the best of his recollection and to include as the disposition that the case was dismissed for lack of evidence. Stickert, called on behalf of the defendant, testified that Callavini made out the new report and he put the original in the police file and put a copy in with copies of the other reports for the Council. Callavini denied that Sergeant Stickert was present when he was directed to make out the new report by the defendant.
Further important facts are necessary in the discussion and decision of this case; during the course of the prosecutor's summation ...