For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J. Hall and Haneman, JJ., concurring in result.
After the defendant was convicted in the Burlington County Court of committing a private act of lewdness in violation of N.J.S. 2 A:115-1, the trial judge granted the defendant's motion to set aside the verdict and for a new trial. The order stated it was the trial judge's opinion that "misconduct occurred in the jury room of such a nature as to vitiate the verdict returned by the jury on the grounds of bias, passion, prejudice or mistake." The Appellate Division granted the State leave to appeal and while the appeal was pending we certified the matter on our own motion. R.R. 1:10-1(a).
There is no need for us to narrate in detail the evidence presented at the trial. For our purposes it is enough to say that the State's sole witness was a patient of the defendant who is a physician. She testified that he committed an indecent act upon her while she was in an hypnotic state and during the course of being treated by him. The defendant denied the alleged offense. The turning point of the case was the extent of the credibility accorded the testimony of the complaining witness as against that of the defendant and his witnesses, including twenty-five who attested to his reputation.
The day after the jury returned its verdict of guilty, one of the jurors telephoned the trial judge and requested an appointment. At their meeting in his chambers, she informed him of certain allegedly prejudicial statements made by other jurors during the jury's deliberations. Thereupon he relayed this information to the Prosecutor and counsel for the defendant. Seasonably the defendant moved for a new trial on several grounds including:
"3. The verdict of the jury was the result of misconduct on the part of the jury.
4. The verdict of the jury was the result of passion, prejudice, bias and mistake.
5. The verdict of the jury resulted from the making of inflammatory statements by the County Prosecutor.
6. The verdict of the jury was the result of harmful and prejudicial error committed by the trial judge."
In support of the motion, defendant submitted an affidavit of the informing juror which in pertinent part reads:
"The jury took three ballots before reaching its determination. The first vote was taken approximately one-half hour after the jury had retired to the jury room. Between the taking of the first ballot and the second, there was considerable conversation and discussion in the jury room among all of the jurors. During such conversation and before taking the second ballot, one of the members of the jury who took a leading role in the discussions commented upon Dr. Levitt's appearance and said, 'How could anyone go to him because just a look at him leads to the conclusion that he is a person capable of doing the things that he is charged with,' whereupon another woman member of the jury agreed with her. Shortly thereafter the question came up regarding what effect should be given to the character witnesses. Again the woman member of the jury who was taking a leading role stated, 'Did you notice the character witnesses * * *,' and a male member of the jury stated, 'Yes, "characters"!' Then the same woman said, Did you notice most of them were Jews and even one of them was from the Synagogue.'"
The hearing on the motion was adjourned to permit the Prosecutor to investigate the allegations in the affidavit. Thereafter, county detectives obtained statements from the remaining jurors. Some of these were sworn to, others were not; some supported the charges, others contradicted them.
At the subsequent hearing, the trial judge, after finding that defendant's other grounds "standing alone" were insufficient to warrant the granting of a new trial, considered the affidavit of the juror who first brought the matter to his attention and the affidavits and statements of the eleven other jurors. He said:
"However, now we have one more facet added to the whole complexity of this situation; namely that somebody for some reason injected the question of this man's religion, and apparently the religion of many of his ...