Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D. Foley, J.A.D. (concurring).
Defendant, Roy W. Arnwine, was indicted under N.J.S. 2 A:114-2 for incestuous conduct between parent and child. Following a plea of not guilty he was tried and convicted by a jury before the Superior Court, Criminal Division, Burlington County, and was sentenced to a prison term of not less than three nor more than five years. Acting pro se , he filed notice of appeal, proceeded under R.R. 1:2-7(a) as an indigent appellant, and was assigned counsel.
The appeal is predicated upon seven contentions asserted by the defendant, five of which were abandoned by his court-assigned counsel as not being supported by the record. We shall, accordingly, only consider the two questions that were argued before this court which are, as stated in counsel's brief:
(1) Was the manner in which the prosecutor propounded questions to the defendant so prejudicial as to constitute plain error affecting defendant's substantial rights?
(2) Were the results of the polygraph test taken by the defendant admitted into evidence indirectly? If so, was this reversible error?
Detective John P. Mc Gann, a member of the New Jersey State Police, testified that when he confronted defendant with a statement of his daughter Sandra, aged 12, charging him with incestuous conduct he replied: "If she says that, probably it happened." Defendant later denied the allegations in the statement; he also denied he had ever admitted to any of the acts charged, and he pleaded not guilty. The daughter Sandra also denied the facts and charges made in her statement. She not only denied them to her mother, but on three occasions told defendant's counsel that they were not true, and she denied their truth before the grand jury. At the trial, however, she said they were true. The sordid details of the alleged crime need not here be reviewed as our inquiry will be addressed to the disputed developments during the course of the trial.
Defendant challenges the manner of the prosecutor's cross-examination of him in the following interrogation:
"Q. Mr. Arnwine, in 1940 were you convicted of the crime of atrocious assault and battery and rape ? A. No sir.
Q. Attempted rape ? A. No sir.
Q. In Mays Landing? A. No.
Q. Your answer is no? A. Yes. I was convicted of assault and battery. The attempted rape was dropped.
Q. You are sure about that? A. Positive.
Q. That is your testimony? A. Yes.
Q. All right. In 1944 were you convicted of the crime of grand larceny? A. Yes, sir.
Q. In 1933, were you convicted of larceny of an automobile? A. That is too far back for me to remember.
Q. You don't remember whether you were ever convicted in 1933 of larceny of an automobile? A. I don't remember what year I was arrested.
Q. Did you ever steal a car? A. Yes.
Q. Now, in 1955, were you convicted in this County of larceny? A. Yes." (Emphasis added)
When the defendant took the witness stand he invited inquiry into his criminal record, and the prosecutor had the right to explore into that record for the purpose of affecting the witness' credibility, either through the process of examination or by the medium of producing the record itself. This right is authorized by N.J.S. 2 A:81-12. The statute permits proof of convictions as distinguished from proof of indictments, charges and complaints.
To affect credibility the State may prove prior convictions, and to that end may interrogate the witness. The prosecutor is not at liberty, however, to employ questions to create a false premise for consideration of the jury. State v. Cooper , 10 N.J. 532, 555 (1952); State v. Nagy , 27 N.J. Super. 1 (App. Div. 1953); 8 Wigmore, Evidence (3 d ed. 1940), sec. 2276(2).
We have no doubt that the prosecutor may have believed that defendant had been convicted of rape or attempted rape as his questions implied. However, his impression in this respect was erroneous, as a check of the defendant's F.B.I. records would have undoubtedly demonstrated. Defendant suffered a manifest injury which was directly attributable to the manner of the prosecutor's questioning. His answer that "the attempted rape charge was dropped" was a concession that he had once been charged with attempted rape, a matter which plainly prosecutor was not entitled to prove. This information was volunteered by defendant in explanation of his categorical denial that he had been convicted of rape or attempted rape. But it was given only after he had been repeatedly pressed by the prosecutor for an admission that he had been so convicted.
The defendant was on trial for a reprehensible and revolting sex crime. The very fact that the charge originated in the mouth of his 12-year-old daughter placed him in great jeopardy. The cross-examination as to the defendant's having been convicted of rape or attempted rape was in the same area of a serious sex offense as the one with which he stood charged. Through no fault of his own,
defendant under relentless inquiry was obliged to disclose that he had previously been charged with another sex offense. We are strongly of the view that this prior charge may have, in the minds of the jury, lent color to the truth of the charge on which defendant was ...