Conford, Haneman and Ewart. The opinion of the court was delivered by Haneman, J.s.c. (temporarily assigned). Conford, J.A.D. (concurring).
Defendant was convicted in the Union County Court of open lewdness, in violation of N.J.S. 2 A:115-1. The specific acts alleged and relied upon were acts of carnal linguism on three boys. The defendant, in addition to a denial under oath, produced various character witnesses by way of defense.
The defendant asserts, inter alia , that the trial court erred in admitting certain questions by the prosecutor upon the cross-examination of defendant's character witnesses. These questions concerned the witnesses' knowledge of defendant's admitted prior conviction in 1944 for practicing law without a license. R.S. 2:111-2. That crime was downgraded to disorderly conduct in 1952 (N.J.S. 2 A:170-79) and defendant asserts that since the commission of the act no longer constitutes a crime, reference thereto was reversible error.
These questions were posed in the form of "Did you know" that defendant had been convicted. The questions posed assumed the fact of defendant's prior conviction of crime and this brought that matter before the jury before defendant took the stand and before he was given an opportunity to admit or deny the prior conviction, thus prematurely raising the question of the credibility of defendant's testimony in his own behalf. Defendant, however, did not raise any
objection to the form or substance of these questions at the trial. He presently objects to their substance, not their form, and invokes the rule of plain error. R.R. 1:5-1(a).
At the outset, it should be noted that the form of the prosecutor's question was improper. It should not have been "Did you know?" but rather "Have you heard?"
A defendant in a criminal trial may offer evidence of his good reputation in the community for the specific trait in issue. Although the State may not, as part of its affirmative case, adduce proof of a bad reputation, when the defendant presumes to so attempt to prove his good reputation, the door is opened to the State for rebuttal. The State may, as a part of such rebuttal, cross-examine the character witnesses as to whether they had heard rumors in the neighborhood or community of acts, conduct or charges prior to the offense presently asserted by the State. The questions should not be in such form as to elicit the witnesses' personal knowledge of the commission of any of the alleged acts. State v. Von Der Linden , 105 N.J.L. 618 (E. & A. 1929); State v. Steensen , 35 N.J. Super. 103 (App. Div. 1955); Michelson v. United States , 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948).
The purpose of such attack by the State is not to establish the fact of the alleged conduct but rather the existence of the rumor thereof. Its object is to test the character witnesses' credibility and not the defendant's credibility. State v. Steensen, supra. Insofar as the question contemplated an attempted ascertainment of the public knowledge of defendant's conviction of a prior crime, it was proper. But, asserts defendant, the question was, in any event, improper, since the commission of the act of which he had been convicted no longer constituted a crime, and evidence of his commission of a crime only may be shown to test defendant's credibility. He ignores entirely the purpose of the cross-examination. It is to test the credibility of the witness, i.e. , to ascertain whether even though he had heard rumors of misconduct he still conceived the defendant to have a good reputation, and hence his
standards of good reputation are unsound, or he lacks good faith or has no knowledge of defendant's reputation.
The defense seeks to establish, by its character witnesses, the good reputation of the defendant in the community in which defendant resides. The witness professes that he knows the reputation of the defendant in the community and his knowledge is based upon what others in the community have said of defendant's character. The purpose of examining the witness is to ascertain the extent of his knowledge of defendant's character in the community and to determine the basis of the witness' conclusion of good character. Thus, the prosecution seeks to discount such testimony by showing that the witness' knowledge is too limited to be of value, and that he is not a good judge of character.
The cross-examination does not concern itself with the credibility of the defendant until defendant offers himself as a witness. If the answer to the propounded question incidentally reflects upon the defendant's credibility in advance of his taking the stand, he cannot be heard to complain, as ...