Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
As a result of a jury trial in the County Court defendant was convicted on an indictment charging that he did "wilfully cause, procure and suborn" one Butler Blevins "to wilfully swear" falsely "before the Camden County Grand Jury," in violation of N.J.S. 2A:85-14 (aiding and abetting) and N.J.S. 2A:131-4 (false swearing). Although defendant attacks the conviction on several grounds, we find no merit in any of them except his contention that the trial court erred in refusing to grant his motion for "judgment of acquittal" at the end of the State's case.
The central question on which attention is focused is if, on appellate review of a criminal case, the trial court's denial of defendant's motion for a judgment of acquittal at the end of the State's case is determined to have been erroneous, nevertheless should its action in submitting the issue of defendant's alleged guilt to a jury be affirmed where, as the result of defendant's election to present affirmative proofs, evidence emerged supportive of the charge in the indictment and eliminated the deficiencies in the State's case. The State contends that the rule heretofore deemed controlling in New Jersey should be changed.
Although in the case at bar the prosecutor vigorously asserts that the proofs at the end of the State's case warranted the trial court's denial of defendant's motion then made, he also urges that the principle heretofore followed in New Jersey is not in accord with the criterion applied in the majority of the states in our country and in the federal courts. He asserts that the interest of justice is better served by applying the rule enunciated in other jurisdictions. He contends that the time has arrived for the courts of this State to align themselves with the clear majority of other jurisdictions. He asserts in his brief that the reason for the majority rule is that "if the entire evidence is insufficient to sustain a conviction, the introduction of evidence by the defense," after the court has rejected a motion for a judgment of acquittal at the end of the State's case, "amounts to a waiver" of such motion.
[The Court here reviewed the State's proofs and concluded that they were insufficient to withstand defendant's motion for judgment of acquittal at the end of the State's case. It then assayed the proofs as they existed at the close of the entire case, and concluded that they would have afforded ample justification for the submission of the case to the jury.]
The principle which the New Jersey courts have uniformly followed is that where a motion for a judgment of acquittal is made at the end of the State's case, the motion is to be resolved solely on the basis of the proofs theretofore submitted, and regardless of any evidence presented later in the trial. State v. Fox , 12 N.J. Super. 132, 135 (App. Div. 1951). See also State v. Turetsky , 78 N.J. Super. 203, 215 (App. Div. 1963); State v. Long , 67 N.J. Super. 207, 209 (App. Div. 1961); State v. Trypuc , 53 N.J. Super. 6, 11 (App. Div. 1958); State v. Yedwab , 43 N.J. Super. 367, 370 (App. Div. 1957), certification denied 23 N.J. 550 (1957); State v. Pearson , 39 N.J. Super. 50, 55-56 (App. Div. 1956); State v. McCarthy , 30 N.J. Super. 6, 9-10 (App. Div. 1954); State v. Jusiak , 16 N.J. Super. 177, 180 (App. Div. 1951); State v. Bacheller , 89 N.J.L. 433, 435 (Sup. Ct. 1916); State v. Jaggers , 71 N.J.L. 281, 283 (E. & A. 1904).
In State v. Fox, supra , 12 N.J. Super. , at p. 135, Judge Bigelow said:
"Before the reorganization of our courts two years ago, a motion to direct a verdict was addressed to the discretion of the trial court. But if, at the conclusion of the State's case, the evidence was insufficient to make a case for the jury, the denial of a motion for a direction made at that time was considered to work manifest wrong or injury to the accused and to be ground for reversal. This was so, even though later in the case evidence was received sufficient to establish the appellant's guilt. Herein the rule was contrary to that followed in civil cases. State v. Pruser , 127 N.J.L. 97 (Sup. Ct. 1941). It was thought that if the civil rule were applied in criminal prosecutions, it would come perilously near compelling the accused to convict himself, since he must either forego making a defense on
the merits or else risk having isolated bits of his testimony used against him to cure the deficiencies in the State's case. State v. Bacheller , 89 N.J.L. 433 (Sup. Ct. 1916). The substitution of a motion for judgment of acquittal in the place of a motion for a directed verdict, pursuant to Rule 2:7-7, seems to be a change of name rather than of substance. The denial of the motion still raises a ...