On certified appeal to the Appellate Division of the Superior Court from the Bergen County Court.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. The opinion of the court was delivered by Heher, J. Weintraub, C.J. (concurring). Wachenfeld, J. (dissenting in part). Weintraub, C.J., and Wachenfeld, J., concurring in result.
[25 NJ Page 425] The defendant was convicted by a jury in the Bergen County Court under an indictment returned June 14, 1956, charging that he "and John Doe, also known as 'Artie,' whose name to this Grand Jury is unknown," "on or about May 27, 1954 and from thence continuously until" July 30, 1955, in the Borough of Lodi, "did commit the crime of conspiracy in that then and there they unlawfully conspired together to conduct the practice of bookmaking on the results of sporting contests, to wit, Baseball Games," followed by a specification of overt acts allegedly done to effect the object of the pleaded conspiracy; he was sentenced to confinement in the State Prison for a minimum term of not less than two years and a maximum term of not more than three years, and to pay a fine of $1,000;
and the appeal brings up for review the judgment of conviction, on our certification, sua sponte, to the Appellate Division of the Superior Court.
A prior indictment found September 1, 1955, laid to Mucci the practice of bookmaking on the results of baseball games in violation of N.J.S. 2 A:112-3; and thereafter, February 14, 1956, the State, pursuant to an order made on the accused's motion, furnished a bill of particulars averring the "practice of bookmaking * * * by making and taking and recording and registering bets and wagers" on the "results of baseball games" and "the paying of moneys won thereon and collecting the moneys lost on such wagers and bets" during the "Major League Baseball Season in the years 1954 and 1955," both in Lodi and Hackensack, "continuously during said period," "on Mondays and Tuesdays of each week" in Hackensack, "outside the premises 37 Main Street, on Morris Street near the corner of Main Street" and at 51 Main Street, and also at 175 Essex Street in 1955, and "on the balance of the days of the week" during the given period in Lodi "at 9 Linden Street."
March 5, 1956 the accused, in accordance with the State's "demand for particulars," as is said, supplied the names and addresses of witnesses upon whom he would rely, some 126 in number, "to establish his presence at various places other than the places charged by the State as having been the scene of the alleged acts committed by the defendant"; thereupon the accused demanded of the State the names and addresses of all witnesses intended to be called to establish his "presence" at the places and premises designated in the State's bill of particulars as the "scene of the alleged offense"; and the State responded by identifying four such witnesses, by name and place of residence.
July 29, 1956, following the return of the indictment for conspiracy, and with relation to that indictment, the accused submitted to the State the identical list of "alibi" witnesses given on the return of the earlier indictment and made demand for the names and addresses of the witnesses the State intended to call to prove his "presence" at the "scene"
of the offenses alleged in this indictment; and the State replied as it had to the same inquiry upon the earlier indictment.
The accused then moved for a bill of particulars directed to the content of the conspiracy indictment; the motion was denied, and leave to appeal was refused.
March 27, 1957 both indictments were moved for trial; and, on objection by the accused that the notice of trial had reference only to the conspiracy indictment, a clerical inadvertency, the State proceeded on that indictment alone.
The State adduced evidence tending to show that the accused had arranged with the several witnesses, three in number, for their placing of bets and wagers on baseball games by calling a given telephone number, Gregory 1-3646, and that accountings were had for the winnings and losses and payment made accordingly. Said one witness: "We would straighten out on Mondays, once a week"; the individual wagers by telephone varied from $5 to $100; the accused "would come around on Mondays," and "we would settle up; either I would pay him or he would pay me"; the witness would call the designated telephone number and "ask for the line, that means the odds"; that was the course throughout the baseball season. And it was the pattern followed by the other witnesses. One said that at the outset he did not know with whom he was dealing by telephone, but later on he "found that his name was Artie." The accused gave another witness "a credit of $100" for wagering by telephone. They all had weekly accountings with the accused, "usually Mondays, occasionally Tuesday"; the largest sum won by one witness was $363. His telephone communicant, the particular witness said, was not defendant: defendant "has a foreign accent," and the "man on the telephone did not."
The accused did not become a witness; and hence all this testimony went undenied. He called nine witnesses: one, an employee of the telephone company, testified that the telephone number Gregory 1-3646 "was listed for and billed to Miss Teresa Belli" at 9 Linden Street, Lodi, and
there was another telephone "registered" for 9 Linden Street, Lodi, in the name of Arthur Belli; Arthur Belli, a brother of Teresa, was, it seems, a witness before the grand jury in the inquiry that eventuated in these indictments; there were "character" witnesses, and four were residents of a "trailer park" at 99 Dell Glen Avenue, in Lodi, said to have been "actively operated" by the accused throughout the period covered by the indictment, summoned "as people who had lived there during the same period," according to counsel, "to give testimony as to [the accused's] actual presence there, and, by their combined testimony, to establish the period of time, within the period covered by the indictment, that he was there, attending to his business and not in Hackensack as charged."
After testimony had been taken in this regard from the latter witnesses and another, who was not a resident of the trailer court and who vouched also for defendant's reputation, the county judge said that the time had arrived "to limit cumulative testimony" and, since five such witnesses had testified, but two more would be allowed "as to character and his whereabouts during the period in respect to the trailer camp," yet there would be no limitation "as to any other witnesses as to his other whereabouts"; the limitation would apply only "as to his being at that office at certain times in the trailer camp."
And this ruling is now assigned for error, as constituting a denial of the accused's "right to present the testimony of his remaining witnesses as to alibi." It is said that he was thus deprived of "twelve witnesses from whose combined testimony the jury could have found that the defendant was actually in Lodi at his trailer camp during the time when the State claims he had continuously committed acts of bookmaking in Hackensack."
It is said in argument, citing State v. Randle, 128 N.J.L. 496 (Sup. Ct. 1942), as consistent with the offered thesis,
that while the court may, in the exercise of a sound discretion, "and with proper regard to the type, nature and circumstances of a case, reasonably limit the number of witnesses * * * as to collateral matters, such as reputation, impeachment of witnesses and expert opinion," it "has no right to limit the number of witnesses * * * as to a controlling fact, or facts and circumstances bearing thereon," citing People v. Arnold, 248 Ill. 169, 93 N.E. 786 (Sup. Ct. 1911); Reynolds v. Port Jervis Boot & Shoe Factory, 32 Hun 64 (N.Y. Sup. Ct. 1884); Henson & Sons Coal Co. v. Strickland, 152 Ark. 203, 238 S.W. 5 (Sup. Ct. 1922), holding that the limitation of the number of witnesses "on a contested issue" is sustainable "only when it is apparent that a party is trifling with the court and seeking in bad faith to waste its time and obstruct the administration of justice, for under no circumstances can it be judicially known that such additional evidence or witnesses, if received, would not have overcome his adversary."
And reference is made to a case, St. Louis, Memphis & S.E.R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 9 L.R.A., N.S., 426 (Sup. Ct. 1906), affirming that the limitation cannot be applied where the subject of the inquiry is "composed of many elements, and one witness might be qualified on one element and another witness on another," or where persuasion could turn upon the particular knowledge and testimonial qualifications of a given witness or upon cumulation. But the court there spoke of the "crucial point in the case," and the danger "of foreclos(ing) the weight of the evidence," and declared that "while we would not want to say that a trial judge must supinely and indefinitely sit with folded arms to hear a cloud of witnesses spin out evidence upon the same point," there was "no such threatened abuse in this case, * * *."
By way of application of the principle to the case at hand, it is urged, citing Reynolds v. Port Jervis Boot & Shoe Factory, supra, that we are not now concerned with "questions collateral to the facts in issue" but rather the right of a party "to call all his witnesses" in regard to the "chief
issues litigated"; and that "the excluded witnesses" here "were each to contribute testimony tending to establish the defendant's alibi," and the "sum total of all such testimony would have furnished the jury with evidence" to sustain "the inference that the defendant was not at the scene of the alleged acts, or it might have raised reasonable doubt of the defendant's guilt," obviously not a "collateral matter." In a word, the insistence is that "[n]ecessarily, the testimony of each witness could relate only to those periods within the period of the indictment that each had been at the trailer park and in a position to make an observation"; the "opportunities of each witness to make such an observation necessarily vary chronologically with each witness because of such variable factors as hours of employment, periods of time spent indoors absorbed in the care of children and housework, periods spent away from the premises, for instance, for shopping," and "[it] would be absurd to assume that the chronological opportunities of each witness to make observations coincided with the opportunities of every other witness."
But in all seeming, the proffered evidence could show only that during the period of the alleged commission of the several pleaded overt acts in the pursuit of the alleged conspiratorial endeavor, the accused was engaged in a legitimate business enterprise, a mode of proof somewhat akin to evidence of "character," by way of disposition or reputation in the community, State v. Lee, 22 Minn. 407 (Sup. Ct. 1876); and, whatever its probative worth for other purposes, it had little or no virtue as proof of the essential and relevant fact of alibi. Counsel made it quite clear in his colloquy with the court that the tendered testimony was in testimonial quality no different than that adduced from the witnesses called and was infected with the same vice; and so the accused did not suffer prejudice in the ruling under review.
The theory seems to be that because the accused was at the time engaged elsewhere in a lawful undertaking he could not have participated in the conspiracy to violate the gaming laws nor commit the overt acts laid to him in the indictment, an obvious non sequitur.
The process of all evidence is an inference from one fact to the existence of another. Evidence is always a relative term; it signifies a relation between two facts, the " factum probandum," or proposition to be established, and the " factum probans," or material evidencing the proposition; all evidence must involve an inference from some fact to the proposition to be proved. Wigmore on Evidence (3 d ed), sections 2, 12, 25, 26, 475.
And the literal meaning of the term "alibi" is "elsewhere; in another place." Webster's International Dictionary 2 d ed. The plea of "alibi" is not an affirmative defense in the strict, technical sense, but it is defensive in nature. The State has the burden of proving that the accused committed the criminal act; and the accused may offer evidence tending to show that at the alleged time of the commission of the act charged, he was elsewhere than at the alleged place of its commission, and thus to overcome the case made by the State. The defense of alibi has its evidential efficacy in the physical impossibility of the accused's guilt; and where the offered evidence does not meet this standard, the defense of alibi is not sustained. Singh v. State, 35 Ariz. 432, 280 P. 672, 67 A.L.R. 129 (Sup. Ct. 1929); Blackwell v. State, 79 Fla. 709, 86 So. 224, 15 A.L.R. 465 (Sup. Ct. 1920); State v. Wagner, 207 Iowa 224, 222 N.W. 407, 61 A.L.R. 882 (Sup. Ct. 1928); Yarber v. City and County of Denver, 116 Colo. 540, 182 ...