For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J. Francis, J. (dissenting in part). Hall, J., concurs in this dissent. Francis and Hall, JJ., concurring in result.
Defendant appeals from a conviction of subornation of false swearing.
The false swearing for subornation of which defendant, a member of the bar of this State for 38 years, was indicted, arose from the contradictions between facts contained in a sworn statement to the police made by Barbara Holmes concerning one Booker Drinkard and her sworn testimony at Drinkard's preliminary hearing.
Holmes, a narcotic addict, was arrested on April 8, 1960 for possession of narcotics. On April 11 she signed a sworn statement in question and answer form. In response to the question "* * * Will you now tell us how you came to have this suspected heroin in your possession?" she answered, "I obtained it from Booker Drinkard."
Drinkard, the father of several children by Lessie Davis, Holmes' aunt, was arrested on the basis of this statement and on May 26 was accorded a preliminary hearing in the Newark Municipal Court. Defendant was his attorney. Holmes, who had been in jail since her arrest, was brought to court at approximately 11:00 A.M. to appear as a witness against Drinkard. She and another prisoner, Irene Baker, together with Mrs. Gant, a matron from Caldwell Penitentiary, sat on a bench in front of the magistrate.
Drinkard's case was called for trial on that afternoon. Holmes, having been sworn, testified that "I myself obtained the drugs in New York and at the time I gave that statement [of April 11] I was under the influence of narcotics." In answer to the direct question of whether she had gotten the drugs from Drinkard she replied in the negative. Because of the contradictory testimony given at Drinkard's trial, Holmes was indicted for false swearing and pleaded guilty in October 1960.
On defendant's trial Holmes testified that: Defendant came over to speak to her on three occasions on the morning of May 26. The first time, defendant said, "Booker Drinkard wants to know if you will say you got the drugs in New York and that you were under the influence of narcotics." Holmes said she replied, "I know what I am going to say." The second time, defendant made essentially the same statement. Holmes did not answer. The third time, according to Holmes, defendant "said that Booker said if I would say that I got the drugs in New York he would see that I got a lawyer or he would do all he could for me." This time Holmes directed defendant to tell Booker not to worry. Defendant told her that Drinkard would do "whatever he can for me [her]." During each of the conversations, Holmes said, defendant knelt beside her for approximately five seconds.
Holmes' explanation of the reason for her testimony on May 26, as given at defendant's trial, was "Because I know the type of fellow that Booker Drinkard is. I know
he has a way of getting out of jail, out on bail. He manages to get out. I was afraid what he might do to my aunt because of me if I would put that statement on that."
Monahan and Howard, two detectives who had arrested Holmes and who had been present in court to testify at Drinkard's hearing, both partially corroborated Holmes' story. Monahan, who had been 10 to 15 feet from Holmes, testified that although unable to hear any conversation, he did see defendant talking to Holmes before the Drinkard case was called. Howard, who was 20 or 25 feet away, saw defendant twice speak to Holmes. Of the conversations he only heard Holmes say to defendant on the second occasion, "Tell him not to worry."
The State called neither Mrs. Gant nor the prisoner, Baker. None of the other witnesses called who had been present in the courtroom during the Drinkard hearing could remember seeing defendant speak to Holmes.
Holmes testified further that after she had agreed to change her testimony she immediately informed Drinkard of her desire to have as attorney Leon Lavigne, a lawyer who knew her family and who had previously represented her. Lavigne testified that he had been in municipal court on May 27, 1960, the day Holmes was arraigned for false swearing, but that he was in attendance on other cases, having no previous knowledge of Holmes' presence. As he was about to pass the prisoners' bench she called to him. When he turned to speak to her, he testified, defendant came over and said to Holmes: "I told you Mr. Lavigne was going to be here and here he is and he will take good care of you." Although he was puzzled by this remark Lavigne then acceded to a request by Holmes to help her and he entered a plea of not guilty to the charge of false swearing arising out of her testimony on the prior day. As before noted, this plea was subsequently changed to guilty in October. Later that day, Lessie Davis spoke to Lavigne in the corridor outside the courtroom in the presence of defendant, who suggested at that time that he make an
appointment with the aunt. An appointment was made for that afternoon at which time Lavigne informed the Davis woman he would not represent her niece.
Within a week the following occurred between him and defendant: "I met Miss Clawans in the hall of Judge Castellano's court. There is a big hall outside of Part 1, and this was in the morning, either the following Monday or Tuesday morning. And she said to me, 'Aren't you going to represent Barbara Holmes?' I said, 'No.' She said, 'Why not? She is a very sweet girl, a very nice girl.' I said to Miss Clawans, 'If she is such a nice sweet girl you represent her.' She said, 'Well, I can't represent her.' I said, 'If you can't, I won't.'"
Defendant testified that she had gone to see Drinkard in jail on the night of his arrest, May 24, but had not decided when she left whether to represent him, in part because his ability to pay was questionable. William Lindner, who was in charge of the jail, was called by the State in rebuttal and testified Drinkard had given defendant $55 that night. Defendant further testified that she was not in the courtroom at any time on the morning of May 26, stating that she arrived in the afternoon after the Drinkard hearing had been called. She denied having talked to Holmes on May 26 prior to the Drinkard trial.
The jury returned a verdict of guilty from which defendant appealed to the Appellate Division. Before argument there we certified on our motion. See R.R. 1:10-1(a).
Defendant argues that (1) the trial court erred in admitting into evidence Holmes' sworn statement of April 11, 1960 and permitting the exhibit to be in the jury's possession during its deliberation; (2) the State's summation was prejudicial; (3) the indictment was defective; (4) defendant's motion at the end of the State's case should have been granted since there was no proof of defendant's knowledge of the false swearing; (5) the trial court erred in refusing to charge a request that certain particularized
inferences favorable to defendant could be drawn from the failure of the State to call ...