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State v. Wigfall

Decided: November 30, 1961.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS WIGFALL, DEFENDANT-APPELLANT



Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.

Price

Defendant Thomas Wigfall and one Joseph Morton were convicted in the County Court as the result of an indictment charging them with conspiracy to commit robbery in violation of N.J.S. 2 A:98-1. Only Wigfall appeals.

The sole ground of appeal presents the issue whether, under the circumstances here present, defendant was entitled, absent a request therefor, to have the trial court in its charge specifically apprise the jury of the dangers involved in placing reliance upon the uncorroborated testimony of co-conspirators and accomplices. No pertinent request to charge was submitted and no objection to the charge as delivered was made. R.R. 3:7-7.

Invoking the plain error rule (R.R. 1:5-1(a), 2:5), defendant's counsel on appeal (who was not defendant's trial counsel) contends that the court's alleged failure adequately to charge the jury in the particular phase noted affected defendant's "substantial rights" to such an extent as to require a reversal of the judgment of conviction.

The record reveals that on July 25, 1960, three men, Ellerbie, Wilkins and Bailey, were arrested while in the act of robbing one Alvin Little. During the course of the police investigation, they involved appellant Wigfall and Morton as members of the conspiracy. Ellerbie, Wilkins and Bailey were convicted and were awaiting sentence at the time appellant and Morton were convicted of conspiracy as aforesaid. The testimony of the three men presented on the State's case was the main basis for the convictions of appellant and Morton. Appellant denied that he was present at the time and place of the robbery as claimed by the State's

witnesses and denied any connection therewith. The criticized portion of the court's charge was as follows:

"The State has offered in evidence the testimony of three co-defendants who are involved in this indictment, that is, the testimony of Robert Ellerbie, Clarence G. Wilkins and Alfonso Bailey. You have the right to convict on the testimony of accomplices or co-defendants if in your judgment the testimony is entirely credible and worthy of belief."

Emphasizing that the State's aforesaid witnesses had not yet been sentenced, appellant directs our attention to State v. Edelman , 19 N.J. Super. 350 (App. Div. 1952), where we said (at p. 353):

"An accomplice is apt to believe that if his testimony supports the contention of the State, the representatives of the State will accept it as true and will grant him favorable treatment, even though his testimony is, in fact, false."

In that case we further stated that, for the foregoing reason, "among others, the jury should regard the testimony of an accomplice with suspicion, and should accept it as true only after careful scrutiny." Edelman , at p. 354.

Further examination of our opinion in Edelman, supra , reveals that, at page 353, we emphasized that the trial court in its charge ignored the fact that Gross (witness for the State) "was an accomplice of Edelman in the conspiracy and, despite that circumstance, charged the jury 'to accord his testimony just as much value as the testimony of any other witness.'"

The courts of our State have frequently had occasion to note the status of accomplices and to accentuate the necessity for the careful scrutiny to which their testimony must be subjected by the trier of the facts. State v. Black , 97 N.J.L. 361, 363 (Sup. Ct. 1922); State v. Hogan , 13 N.J. Misc. 117, 119 (Sup. Ct. 1935), affirmed 115 N.J.L. 531 (E. & A. 1935); State v. Lieberman , 80 N.J.L. 506, ...


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