Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
On the basis of a jury verdict defendant Hall was convicted of armed robbery in violation of N.J.S. 2A:141-1 and N.J.S. 2A:151-5. One James Culver was also indicted, but the State moved the trial against Hall only and, as hereinafter set forth, called Culver as a witness for the State.
On this appeal defendant Hall presents only one ground for reversal which we find meritorious. It concerns the legal propriety of the extent to which the trial court permitted the State to go, in "neutralizing" testimony of Culver, alleged by the State to be an "adverse" witness, and as to whose testimony at trial the State claimed "surprise."
The record on which the appeal is based reveals that on February 4, 1961, at about 9 P.M., Edith LaMotta, who with her husband Casper LaMotta operated a luncheonette and candy store in the City of Newark, testified that she was accosted in the store by Culver, armed with a revolver and
with his head covered by a hooded mask. She said that he entered through one of the two doors affording access from the street into the store, put the gun "into [her] stomach" and said: "This is a stickup." She related that at gun point Culver forced her to enter a kitchen in the rear of the building from which room he told her not to "move." That area of the building constituted the portion of the structure where she, her husband and daughter resided.
Mrs. LaMotta further testified that as she, obedient to Culver's command, moved toward the kitchen, she had to make a turn around a counter; that as Culver followed her holding "the gun in [her] back" she observed defendant Hall looking into the store through a window, saw him enter the store and go to the cash register. She screamed and her husband emerged from the kitchen and, although ordered by Culver to "get over there," ran from the side door and "called for help." After she entered the kitchen she saw Culver run from the building. She "stood a few minutes," went directly to the cash register, and found it empty. She said that $125 had been taken therefrom. The police arrived promptly.
Despite the fact that Mrs. LaMotta, as above set forth, testified that Culver was masked at the time of the robbery, she identified both Culver and Hall in a subsequent police line-up and at trial as the persons who committed the crime. She testified that she was able to identify Culver because "his eyes were red." She said that Hall was about six feet, six inches tall and that Culver was "five-foot something."
Casper LaMotta testified that at the time of the robbery he was in a bathroom located in the rear of the store. As he emerged from that room he saw "a short fellow," wearing a mask, pointing a gun "in [his wife's] stomach." Casper ran to the street shouting "Holdup," and saw two men run down the street. He said, "the tall guy run out first and then the guy with the gun ran out last." He was unable to identify either of the men.
A detective of the Newark police department testified that as the result of investigation by the police department, Culver
was taken into custody. He implicated Hall. The detective further said that in both oral and typewritten statements Culver related to the police the details of the formation of the plan to rob the LaMotta store, the execution of the robbery by Hall and him, and the subsequent equal division of the stolen money between them. He said that the money was divided in Hall's room in a house to which they went immediately after the robbery.
The detective further testified that Culver's recital of the events, the preparation of the written statement, Culver's reading of the statement aloud, and his subsequent execution thereof, took place in Hall's presence at police headquarters; that although the latter remained "mute" during the questioning, he signed Culver's statement "as the first witness." On cross-examination the detective admitted that earlier in the day Hall had repeatedly denied having anything to do with the robbery and at no time admitted that he had participated in it in any way.
Following the testimony of Mr. and Mrs. LaMotta and the police detective, the State called Culver as a witness. Under direct examination he said that one Tom Berry, and not defendant Hall, was with him during the robbery aforesaid. Thereupon the State pleaded surprise and, at the request of defendant's counsel, the propriety of that plea was argued in the absence of the jury. The trial judge honored the State's plea and, on recalling the jury, permitted the State to interrogate Culver in attempted neutralization of his testimony that Berry instead of defendant joined him in the commission of the crime. Such interrogation was extensive and involved a verbatim reading of most of the written statement which Culver had given to the police. He repudiated all references to Hall therein, reacknowledged that he (Culver) had committed the robbery, but insisted that he was accompanied by Berry and not by Hall. He denied that he had read the statement aloud in Hall's presence or that he had orally implicated Hall either in or out of his presence.
At the conclusion of Culver's examination the trial judge made the following statement to the jury:
"I must instruct you that the cross-examination on the part of the State of the last witness you heard, that is, James Culver, was only permitted for the purpose of neutralizing his testimony with respect to the implication of Berry and only offered for the purpose of neutralizing that testimony, so that you cannot consider the testimony of that witness to any greater extent, that is, the testimony on cross-examination, to any greater extent than in neutralizing his testimony on direct that Berry was his assistant or accomplice at the scene rather than Thomas Hall. You cannot consider any of his testimony on cross-examination for the purpose of implicating or having any weight so far as the guilt of Leroy Hall is concerned."
After certain further incidental testimony the State rested and, following the denial of a motion by defendant's counsel for a judgment of ...