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State v. Kobylarz

Decided: March 18, 1957.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK KOBYLARZ, DEFENDANT-APPELLANT, AND RAYMOND BEDNARSKI, DEFENDANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[44 NJSuper Page 252] On May 31, 1956 the grand jury of the County of Bergen presented to the court an indictment charging the defendant Frank Kobylarz and one Raymond Bednarski with a conspiracy to make and take in the Borough of Wood-Ridge what is commonly known as a book upon the running of horses, mares and geldings, which unlawful

project was alleged to have been pursued from June 1, 1955 until on or about August 25, 1955. Not unprecedentedly in such prosecutions the defendant Bednarski retracted his plea of not guilty to the accusations of the indictment, entered a plea of guilty thereto, and testified on behalf of the State in its prosecution of the defendant Kobylarz, who was upon trial by jury convicted of the alleged offense.

Initially we may announce in response to the defendant's first ground of appeal that we have thoughtfully examined the evidence introduced by the State and also that submitted on behalf of the defendant and conclude that there was relevant and competent evidence when the State rested and at the completion of the testimony from which a logical inference of the defendant's guilt of the alleged offense could be deduced by the jury. State v. Picciotti , 12 N.J. 205 (1953); State v. Huff , 14 N.J. 240, 249 (1954); State v. Rogers , 19 N.J. 218, 231, 232 (1955); State v. Kollarik , 22 N.J. 558, 564 (1956), are expressive of the test. Moreover, a conspiracy may be proved by circumstances from which the jury can logically infer its existence. State v. Carbone , 10 N.J. 329, 341 (1952). The motions of the defendant for judgments of acquittal were properly denied.

Another reason assigned for the reversal of the conviction pertains to the cross-examination of the defendant concerning his previous conviction of crime.

On direct examination counsel for the defendant deemed it to be perspicacious in the course of his interrogation unobtrusively to propound the following question to the defendant: "Some years ago you were convicted of a crime, weren't you?" The answer was "Yes, sir."

The following quotation extracted from the transcript exhibits the subsequent cross-examination of the defendant anent the subject:

"Q. What was the crime you were convicted of?

The Court: Just a minute.

Mr. Selser: I object to that question, if your Honor please.

Mr. Galda: May I be heard on the question?

Under direct examination, Mr. Selser asked whether he was convicted of crime years ago.

The Witness: That's correct.

Q. What was the crime?

Mr. Selser: I object to it.

The Court: I will allow it.

The Witness: What was the crime?

Q. Speak loudly and clearly so we can all hear it. A. The crime -- I really don't remember offhand, to be honest with you. I don't know much about -- I know I pleaded to a crime. I pleaded non vult to a crime.

Q. What was the crime? A. I think it was bookmaking. I am not sure.

Q. Bookmaking. Were you convicted for another crime? A. I was convicted of another one?

Q. Were you, sir? A. Probably if you have it there.

Q. What was that crime? A. That crime, I don't know. That was twenty-five or more years ago, I believe.

Q. In 1951 were you convicted of a crime? A. Yes.

Q. What was that crime? A. That's what I said -- it was bookmaking.

Q. Prior to that? A. Then I was convicted of another crime but I said it was about twenty-five years ago.

Q. What was that crime? A. I don't remember it."

The permitted disclosure thus elicited from the defendant that his previous conviction had been for the crime of bookmaking is characterized by his counsel as erroneous and declared to have been materially prejudicial to the defendant. The basis of the insistence is that the disclosure was intended by the prosecution to reveal the propensity of the defendant to commit the crime of ...


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