Goldmann, Foley and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).
Defendant appealed from a County Court conviction on an indictment charging him with assault upon one Desmond C. Love with intent to rob. N.J.S. 2 A:90-2.
At the outset, defendant charges that he was denied the right to have counsel represent him at the trial. The record before us is devoid of any testimonial support of the claim. On the contrary, we are satisfied that the defendant was made fully aware that he was entitled to have counsel assigned by the court to represent him. Notwithstanding this, he knowingly chose to represent himself, for what he
thought were good and sufficient reasons. The factual situation which obtains here is in no wise similar to that in State v. Almond , 32 N.J. Super. 465 (App. Div. 1954), where defendant was not advised of his right to counsel and of the court's willingness to assign counsel to him.
It is next contended that the defendant was "denied adequate witnesses for his defense." Through some misunderstanding, defendant had not made any arrangements for the issuance or service of subpoenas on his prospective witnesses. His application for an adjournment was denied by the trial court and he was directed to proceed. While he had none of his witnesses immediately available, some of them were confined to the nearby county jail and he asked that he be permitted to produce eight of them to testify on his behalf. The trial court declined this request, limiting him to two witnesses:
"THE COURT: Now I think you have given me a long list of witnesses that you want, all for the same purpose, and that is to show that you were bruised when you arrived at the jail and that brutality was used against you. I think that if you take two witnesses, that should be sufficient. It's not necessary to be repetitious. Now you could have your choice, two of the best that you have in mind; Mr. Frank Brown?
THE WITNESS: Frank Brown and James Willis.
THE COURT: And, two, James who?
THE WITNESS: James Willis.
THE COURT: James Willis. Now you want to have the benefit of the best two that you can think of. Mr. Brown and Mr. Willis?"
These witnesses were offered both for the purposes stated by the court and for the purpose of contradicting the testimony of Dr. Williams, the county physician who was called by the State.
It is urged that the trial court fell into error in thus limiting the number of defense witnesses. While no objection was made by defendant to this ruling as required by R.R. 1:5-1(a), R.R. 2:5, we cannot blind ourselves to the ...