Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.
[87 NJSuper Page 100] Defendant was found guilty by a jury in the Somerset County Court of unlawfully receiving
stolen property of the value of $133.50, well knowing the same to have been stolen, in violation of N.J.S. 2A:139-1. In appealing his judgment of conviction, defendant contends solely that the trial judge erroneously denied his application, made pursuant to N.J.S. 2A:81-20, for a certificate to compel the attendance at his trial of an alleged out-of-state witness.
The indictment, returned by the grand jury on May 22, 1964, charged defendant with having committed the offense on or about March 26, 1964. Defendant pleaded "not guilty" on May 29, 1964. Trial was set for June 8, 1964. However, the case was not reached for trial until the afternoon of June 10, 1964. When trial of the case was about to commence, defendant's attorney, for the first time, applied to the trial judge to issue a certificate, in accordance with N.J.S. 2A:81-20, directed to the County Court of Luzerne County, Pennsylvania, to compel the appearance of one Lawrence Sabol, otherwise known as Lance Sabol, "who resides in Royer Run, Pennsylvania," as a witness for defendant. Defense counsel represented to the trial judge that defendant had been looking for this witness, but had not been able to locate him "until the last forty-eight hours."
The prosecutor opposed issuance of the requested certificate, pointing out that "based on the experience we have had in following this procedure, it would take at least a week to compel the presence of such a witness and possibly more in the event there is a request for assignment of counsel, and preparation of facts and full hearing in a foreign jurisdiction."
Thereupon, the trial judge took defendant's testimony to determine the merits of the application. Defendant testified that he required the presence of Sabol for his defense, but did not specify at this preliminary hearing what testimony, if any, Sabol would give that might help him. Defendant stated that he had been making inquiries since the indictment to locate Sabol "down to the Shore where him and I worked in a project," and first found a clue to Sabol's actual location
when "I was told last Saturday that he may be up Royer Run, Pennsylvania, where he is supposed to be from. I went up there Monday. * * * I talked to him in the bar. I asked him to come down and help me out. * * * he wouldn't come down."
In answer to questions by the trial judge, defendant stated that he had gone down to the Shore -- Lakewood, Toms River, Asbury Park -- "several times," looking for Sabol, and it was only on the preceding Saturday that he went to "Wilkes Barre," because he "didn't know where Royer Run was." When asked how he had obtained the name of that town, he answered:
"We were talking in a bar. I asked if anybody remembers this fellow, remembers where he was from. One fellow said, 'Royer Run, Pennsylvania.'"
And then, according to defendant, he went to "Wilkes Barre."
In ruling against defendant's application for the certificate, the trial court stated:
"The statute, apparently is permissive, not mandatory. I do not believe that the defendant made the necessary investigation to determine where this man was. I think the application is made merely ...