On certified appeal to the Appellate Division of the Superior Court from the Law Division, Criminal, of the Passaic County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Heher, J.
[24 NJ Page 397] We certified here on our own motion the State's pending appeal to the Appellate Division of the Superior Court from a judgment of the Law Division, Criminal, of the Passaic County Court, entered by the assignment judge, R.R. 3:4-1; 3:5-5(b), dismissing a complaint made under oath September 25, 1956 by an officer of the New Jersey State Police, charging on information and belief that defendant, a resident of New York, "at some time in 1955," in the County of Passaic, in this State, "did unlawfully tap or make a connection with a telephone wire or instrument" of another person to the affiant unknown, "and did take" and "make use of" a "message, communication or a report intended" for another, in contravention of N.J.S. 2 A:146-1.
The complaint was followed by a warrant for the arrest of defendant issued by Judge Colie, then sitting in the Passaic County Court; the arrest was made immediately, and defendant was taken before the Ewing Township [Mercer County] Municipal Court and released in the custody of his counsel for an appearance before Judge Colie in the Passaic County Court on the ensuing September 28. The appearance was made accordingly, and counsel moved for the dismissal of the complaint and the discharge of the accused on the grounds, reduced to writing at a continuance of the hearing held November 9, 1956, (a) that the "arrest and complaint are based upon and were instituted as a result of defendant's answers to questions by a joint investigating committee of the Legislature at a time when defendant was a witness before said body so that such answers were used against defendant in violation of N.J.S. 52:13-3," and (b) for want of jurisdiction over the defendant, he "having been arrested at a time when he was exempt from and not subject to arrest as provided in N.J.S. 2 A:81-21."
R.S. 52:13-3 provides that witnesses "summoned" to appear before "any committee" authorized by that article or "any other law" to conduct "an investigation or inquiry" shall be entitled to fees and mileage as in judicial proceedings; and "all witnesses sworn before any such committee shall answer truly all questions put to them which the Committee shall decide to be proper and pertinent to the investigation or inquiry," and for false swearing shall be guilty of perjury; and "No such witness shall be excused from answering any such questions on the ground that to answer the same might or would incriminate him; but no answers made by any witness to any such questions shall be used or admitted in evidence in any proceeding against such witness, except in a criminal prosecution against the witness for perjury in respect to his answers to such questions." And "Any witness who refuses to answer any questions decided by the Committee to be proper and pertinent shall be guilty of a misdemeanor; and any witness who, having been summoned to appear before any such committee, fails to appear in
obedience to the summons, or, appearing, refuses to be sworn shall be guilty of a misdemeanor."
Affidavits were submitted in support of the motion; and a counter affidavit was presented by Deputy Attorney-General Joelson.
The issue thus raised concerns the nature of the appearance and the status of the accused, a nonresident, as a witness before the Joint Legislative Committee to Study Wiretapping and the Unauthorized Recording of Speech. Was he there in response to a committee subpoena served while he was in New Jersey? He testified at a public hearing of the committee held September 25, 1956 that he had made "between 36 and 50" wiretaps in New Jersey during the prior two or three years; the "last installation" in New Jersey, he said, "was around March, 1956," for a "chemical engineering" concern, a manufacturer of "chemical engineering devices," "in a town adjacent to Passaic," the name of which he could not "recall at the moment," all "without the knowledge" of the local police authorities; he identified his employer in a like activity in another New Jersey municipality he could not remember by name, and then he said he considered it "unfair to request a list of [his] clients."
At this hearing, counsel for the legislative committee said, in response to the Attorney-General's inquiry: "No, no subpoena [for the appearance of the accused as a witness] has been issued to my knowledge"; and the Attorney-General points out that although the accused was then on the witness stand, the reply "elicited no word of correction from him." And it is said in argument that "This clearly discloses that neither the defendant, the Committee Chairman, nor the Committee Counsel considered that the defendant's testimony was given in response to a subpoena and indicates that the defendant was not relying on any statutory immunity when testifying."
But the affidavits introduced in support of the motion tend to show that in the Spring of 1956 defendant "met" in New York City with Senator Forbes, the chairman of [24 NJ Page 400] the legislative committee, and Mr. Cerny, its legal consultant and, to use the words of counsel, he then and there "indicated that he had some information which he thought would be helpful to the Committee in its studies"; Senator Forbes "requested that defendant testify before the Committee at a future date," and defendant "agreed to comply with this request"; June 26, 1956, "at the Robert Treat Hotel, Newark, New Jersey, Russell T. Kerby, Jr., committee counsel, served a committee subpoena on defendant requiring him to appear at a committee hearing on June 29, 1956, or at any adjourned day, at the Chalfonte-Haddon Hall Hotel, Atlantic City, New Jersey"; June 28, 1956, defendant, "who was serving some subpoenas in Atlantic City for the Committee, telephoned Mr. Kerby in Newark and informed him that he was pursuing some investigations which he thought might lead to wiretapping and eavesdropping information in" New Jersey, and "he would be present at the June 29, 1956 hearing in Atlantic City if those investigations were completed"; at 10 A.M., June 29, 1956, "Senator Forbes, Mr. Cerny, and Mr. Kerby conferred and discussed the absence of defendant from the Committee Hearing room," and "decided and declared that the Committee still desired the benefit of Mr. Spindel's testimony, and that his subpoena should be continued and adjourned from day to day until such time as Mr. Spindel could again be in the State of New Jersey to testify"; on or about September 10, 1956, "Senator Forbes telephoned defendant's attorney and informed him that the defendant would be required to testify at an open hearing of the Committee tentatively set for September 18 or 19, 1956, in Trenton, New Jersey"; a few days later, "defendant telephoned Senator Forbes from Alabama, and Senator Forbes again notified defendant that he would be required to testify at a Committee hearing definitely set for September 25, 1956, in the Assembly Chamber, State House, Trenton, New Jersey," and on September 25, 1956, "defendant came in to the State of New Jersey, pursuant to the Committee subpoena and the direction of the Committee chairman, and gave testimony
under oath before the Committee"; and, continues counsel, "Although a statement was made by Committee counsel to the effect that to his knowledge no subpoena had been served on defendant, ...