Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
Although this appeal also raises the question whether the verdict was against the weight of the evidence, we deem the only substantial question before us to be whether the circumstances attending the admission into evidence of a written confession of a codefendant operated so prejudicially against appellant Young as to call for a reversal. The evidence adduced against him by the State, primarily his identification in court by the victim of the holdup, sufficed in our judgment to sustain the jury verdict of conviction.
Young and one Williams were tried jointly on an indictment for armed robbery. The State's evidence tended to show that these persons, together with one "Uncle," drew up in a car alongside a parked automobile of one Washington, just after the latter entered it with some $3000 in cash which he had just obtained at a bank as the result of cashing pay checks of fellow-employees; and that Young emerged from the car, took the money from Washington under the threat of a brandished revolver, and sped away with the others.
Williams was apprehended first, and assertedly gave a signed written statement inculpating himself and Young in
full detail. At the trial Williams denied participation in the crime, recanted the confession, and testified he was forced to give it by force and violence of the police and by being plied with whiskey to the point of near-intoxication. Young's defense at the trial was an alibi, purportedly supported by witnesses.
The State offered evidence of the voluntary character of Williams' confession, and it was found voluntary by the trial judge after a hearing thereon outside the presence of the jury. Young objected to its admission in evidence because of its implication of him as a participant in the crime; alternatively, he moved to exscind therefrom each and every reference to him. The judge ruled against Young in both respects and allowed the document into evidence, first, however, explicitly informing the jury that it was being admitted as evidence against Williams alone and was not in any way to be considered by them in relation to the question of Young's guilt. This admonition was repeated in the court's formal instructions to the jury at the end of the case. There was at no time a motion by defendant Young for severance of his trial.
Defendant concedes that under the settled law of this State defendants may be jointly tried for a crime charged to have been jointly committed, notwithstanding the State intends to offer in evidence a confession made by only one of them which inculpates all, providing the jury is clearly informed at the time of its introduction at the trial that it constitutes evidence against the confessor alone and not against the others and that it should be completely disregarded in judging the evidence against them. State v. Ravenell, 43 N.J. 171 (1964); State v. Tassiello, 39 N.J. 282 (1963). He emphasizes, however, as did the Supreme Court in Tassiello (pp. 296-297), that there is always a possibility of prejudice to the non-confessing defendants in such a course, and he asserts that under the combination of surrounding circumstances here presented, the hypothesis of prejudice is overwhelming and the resulting injustice to defendant
manifest and inescapable. He further buttresses his position by pointing out that aside from Williams' confession the only evidence against him is an identification by one who is asserted to have seen him only for several seconds, and that in a state of fright and excitement. See People v. Krugman, 44 Misc. 2 d 48, 252 N.Y.S. 2 d 846, 851 (Sup. Ct. 1964).
The type of problem here presented is a recurrent and difficult one. Note the dissent by Mr. Justice Frankfurter in the 5-4 decision of the United States Supreme Court in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S. Ct. 294, 1 L. Ed. 2 d 278 (1957), and the comment thereon in State v. Tassiello, supra (39 N.J., at pp. 296-297). See also People v. Krugman, supra. Tassiello, while pointing out that the general rule of admissibility is ordinarily justified by "considerations arising out of the due administration of criminal justice," nevertheless qualifies the appropriateness of its application by the limitation that the "circumstances [be] such that the jury can reasonably be expected to follow the court's admonition to disregard the confession as to the other defendants."
In the present case we are constrained to the conclusion that the refusal of the trial court on motion of defendant to exscind certain portions of the Williams confession not necessary to the intelligibility thereof in relation to Williams' guilt, but manifestly harmful to Young, requires a reversal of the conviction of the latter.
The Williams confession is in the form of question and answer and is relatively short, taking up five pages in the transcript. It is peppered with references to Young's complicity, with use of his full name, "John Paul Young." The recital of the events up to and including the ...