For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Haneman. For affirmance -- Justices Francis and Schettino. Francis, J. (dissenting). Schettino, J. (dissenting).
Defendants, James Peetros and Charles Thomas Koskinas, were convicted of armed robbery. On appeal, in an unreported opinion, the Appellate Division reversed as to Peetros holding that the failure of the trial judge to instruct the jury on alibi was plain error and as to Koskinas, holding that certain cross-examination of him by the State regarding a crime involving firearms with which he had been charged but not convicted constituted reversible error. The Appellate Division remanded the cause for a new trial. We granted the State's petition for certification. 44 N.J. 396 (1965).
The facts are relatively simple. As was his practice, John Daly, owner of Daly's Grill, left his place of business at 10:30 A.M. on June 23, 1961, and drove to a bank to cash checks. On the return trip he was cut off and forced to stop by a car that swerved in front of him. Two men wearing gloves, straw hats and sunglasses got out of the other car, put guns into Daly's ribs, and forced him to give them his
money. They then hit Daly with fist and gun, forced him to lie down on the floor of his car, returned to their car and drove away.
Daly said he recognized Peetros at the holdup scene as a man who had been in Daly's Grill on five successive Thursdays. Daly examined rogues' gallery photographs at Camden and Philadelphia without result. Five weeks after the holdup Daly saw the defendants, recognized them, saw them drive off in a white car with Pennsylvania license plates and reported this to the police. (Defendant Koskinas stated he owned a black Cadillac; defendant Peetros admitted owning a black Cadillac with a white top.) Some months later Daly was shown additional mug shots among which he found the pictures of the defendants. After defendants were apprehended, Daly picked them out of lineups as the holdup men.
Defendants claimed mistaken identity. Peetros denied he was ever in Daly's tavern, and testified he was with his dentist in Philadelphia between 10:00 A.M. and 11:00 A.M. on the day of the crime. He had no independent recollection of his whereabouts and relied upon an entry in the dentist's appointment book. The dentist also so testified on the basis of that entry. The entries in the appointment book were few in number, and were in pencil. The dentist said that the work done would have taken more than one hour to perform, and that he charged $5.00 for his services.
Koskinas testified that he could not remember where he was on June 23, 1961, but that on that day he never left Philadelphia, his place of residence.
Peetros prevailed in the Appellate Division upon his claim that the trial court committed "plain error" in failing to charge, although no request or objection was made, "that alibi was an element of the defense and that it was incumbent upon the State to prove beyond a reasonable doubt that Peetros was present at the scene of the crime." In reversing
the conviction upon that ground the Appellate Division relied upon State v. Searles, 82 N.J. Super. 210, 213 (App. Div. 1964).
We have since held in State v. Garvin, 44 N.J. 268 (1965), that alibi is simply part of a defendant's general denial of guilt and that it need not be singled out for special instruction to the jury. We said (p. 274):
"* * * There is no need to speak of alibi in such separate terms, and indeed to do so will more likely obscure the case than clarify it. The important thing is to make it plain to jurors that to convict they must be satisfied upon a consideration of all of the evidence that guilt has been established beyond a reasonable doubt. If a defendant's factual claim is laid beside the State's and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State's, the jury has the issue in plain, unconfusing terms. If events at the trial should be thought to suggest to the jury that the defendant has the burden of proving he could not physically have committed the crime, then of course the trial court should dissipate that danger by telling the jury that the defendant does not have the burden of proving where he was at the critical time and that evidence offered on that score is to be considered with all the proof in deciding whether there is a reasonable doubt as to guilt."
It is true, as the dissent in the present case says, that a defendant who claims an alibi might find it awkward to contend not only that he was not there but also that the alleged criminal event itself never in fact occurred. If any awkwardness is involved, it is present whenever a defendant denies involvement in the critical event and hence is not peculiar to a claim of alibi. At any rate, we do not see how this problem bears upon the question whether there should be a special instruction upon a claim of alibi.
In the present case the factual situation was uncomplicated. Daly testified that defendants held him up and defendants testified they did not, Peetros adding that he was at his dentist's office at the hour of the crime and Koskinas saying he had no precise idea where he was at that time. The contending factual claims were arrayed against each other in plain
view. The court's charge*fn1 correctly described the State's burden to prove guilt beyond a reasonable doubt, requiring an acquittal if a reasonable doubt remained after a consideration of "all the evidence" in the case. The situation comes precisely within the following excerpt from Garvin (44 N.J., at p. 274):
"In the case before us, there was no room for misunderstanding. There was no intimation that defendant had to prove he was in Philadelphia or that he had the burden to create a reasonable doubt or that a reasonable doubt could not arise from his testimony. The trial court made it plain that the burden of proof was upon the State to establish guilt beyond a reasonable doubt upon the entire case. The factual issue was simple, and it was left to the jury in clear terms."
Hence the judgment of the Appellate Division cannot be sustained on the basis it gave. Nor can it be upheld upon other grounds Peetros urges. More specifically, we see
no error in the trial court's refusal to permit Peetros to prove that he offered to submit to a lie detection test if the State would stipulate the results would be evidential; nor can we say the verdict was against the weight of the evidence.
As to Koskinas, the Appellate Division found error in the prosecutor's cross-examination with respect to a prior conviction for crime. The prosecutor held a report from the State Bureau of Identification showing defendant's several encounters with the law. The report showed a charge in Pennsylvania reading: "Fire Arms Act. Aslt. w to Ravish." The report noted this disposition: "250 F & C [fine and costs]. 9-18 Mos. If F & C are Pd. Par. under terms not to contact girl or family in any way."
The cross-examination complained of reads:
"Q. Have you ever been convicted of crime? A. Yes, I have.
Q. In Pennsylvania? A. Yes, ...