On appeal from the Union County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Jacobs. For reversal -- Justices Heher and Weintraub. The opinion of the court was delivered by Oliphant, J.
This is an appeal, certified here on our own motion before hearing in the Appellate Division, by the Chief of Police of the City of Rahway, from a judgment of conviction entered on a jury verdict in the Union County Court convicted him of knowingly not enforcing the gambling laws against one Burke, a tavern keeper in Rahway who allegedly conducted a bookmaking operation in his tavern in February and June, 1952, and this neglect of official duty was in violation of N.J.S. 2 A:135-1.
The original indictment was in two counts, the second count making the same charges with respect to certain other alleged bookmaking establishments in the city. In a previous trial the appellant had been acquitted of count two of the indictment but had been convicted on count one, the count relating to Burke. That conviction was reversed by this court upon the ground that while the trial court had permitted Burke to be cross-examined upon his prior criminal activities and he had testified somewhat fully as to them, the court then charged the jury to disregard such evidence because it was not based upon a record of conviction.
This we held to be prejudicial error for the reason that the evidence of Burke's criminal career beyond his convictions had become a part of the proofs without objection from the State, and that it was as much relevant evidence on the issue of his credibility as was the evidence of his convictions. Thus the charge of the court was an improper assumption or infringement upon the province of the jury. State v. Dunphy, 19 N.J. 531, 536 (1955).
The State's case against the appellant depends on the testimony of Burke and his bartender, Gesell, who came on as a rebuttal witness. Burke's testimony was that he owned and operated the tavern in Rahway at the address named in the indictment and that he carried on bookmaking activities
there during the months of February, March, April and May 1952, and that during the same period of time he made monthly payments of $50 to the defendant-appellant; that during these periods of time he was not interfered with by the Rahway police, but that he was raided on June 2, 1952 by the prosecutor's office and agents of the Alcoholic Beverage Commission, after which he was convicted and sentenced to prison, fined $5,000, and served his time.
The appellant's defense was a complete denial of the $50 payments. He testified that he had reported the possibility of gambling in the tavern to the Alcoholic Beverage Commission and its agents had been unable to get any evidence of gambling, and further, he had specifically instructed the superior officers and patrolmen of the police department to be on the lookout for gambling and assigned one or two men specifically to watch the operation of Burke's tavern. This testimony in some details was corroborated both by the A.B.C. agents and by some of the police witnesses, but at the time the raid was made it was done over the head of the defendant-appellant and his first knowledge of it was when he received a telephone call notifying him that the raid was underway. All the police witnesses, including himself, took the position they could not get evidence on the tavern because they were too well known to the people there. The only corroboration of the payment of the $50 a month was supplied by the bartender, Gesell, who, without leaving the tavern and looking out through a narrow window, claims he saw a meeting between Burke and the defendant-appellant at which one of the payments was made.
The first point made by the appellant is that the trial court erred in restricting the cross-examination of the witness Burke. On the second trial, when the attempt was made to extend the cross-examination beyond the prior convictions of Burke for crimes, the State objected and the objection was sustained for the reasons set forth in the opinion of this court, State v. Dunphy, supra, 19 N.J., at page 536. There we stated that while our statute, N.J.S. 2 A:81-12, allows the evidence of the conviction of "any crime" to be
admitted, evidence of crimes of which the witness was not convicted should be excluded, not because such evidence is not relevant to the issue of credibility of the witness, but in furtherance of the policy to insure a fair and orderly trial.
Since then we have again examined this rule in State v. Kociolek, 23 N.J. 400 (1956), and there we adhered to the rule which only permits a record of conviction to be used in attacking the credibility of the witness. Burke actually admitted two or three convictions of crimes, but the complaint here is that the cross-examination was limited when counsel tried to extend it to his other many ...