Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Defendant was convicted in a municipal court of careless driving in violation of R.S. 39:4-97, and fined. He appealed to the County Court where, after a trial de novo, he was again convicted and fined $100. He appeals.
His principal argument is that his oral and written admissions to the police that he was the driver of the automobile in question should not have been permitted in evidence because the police did not follow the rules laid down in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436,
The accident which led to the charge happened on December 4, 1964. Defendant's Chevrolet, occupied by him and Anthony and Angelo Lionelli, struck a curb and swung around into the path of another car. In the resulting collision Anthony was killed and defendant seriously injured. The record does not show what happened to Angelo or why he did not testify.
Defendant was removed to the hospital by ambulance. State Trooper Townsend, assigned to investigate the crash, testified he came to the hospital several times to interview defendant but found him unable to talk until December 16. On that date, while Townsend was "still investigating" the case, defendant told him that he was driving the car and gave Townsend his version of how the accident happened. On December 20 while defendant was at home, having been discharged from the hospital, Townsend again interviewed defendant, recorded his statement in longhand, and had defendant read, correct and sign it. Townsend then said he would have the statement typed and would be back. He returned later the same day with a typed copy of the earlier statement and asked defendant to read it, and sign it if it was correct. The statement begins with the following:
"Q. * * * Do you Mr. Joseph Zucconi voluntarily desire to make a statement regarding this accident of your own free will and accord, fully realizing the importance of such statement to the state and all concerned?
The defendant signed the statement in the presence of members of his family. The statement does not admit any wrongdoing, but it does admit that defendant drove the car.
At the trial defendant was represented by counsel. He testified that it was the deceased Anthony Lionelli who drove the car. The State admits that without defendant's admissions it could not prove that defendant drove the car. The State also
admits that defendant had no counsel when he made the admissions; that he was not told that he had a right to counsel or offered one; and that he was not warned that what he said might be offered in evidence against him. On the other hand, defendant admits that he did not ask for counsel.
The trial in the County Court took place on March 7, 1966 and the trial in the municipal court even earlier. For that reason alone Miranda did not apply to the case at bar. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2 d 882, 892-893 (1966). Escobedo did not apply because defendant was not in custody and did not ask for counsel. State v. Ordog, 45 N.J. 347, 361 (1965); State v. Vigliano, 43 N.J. 44, 50-52 (1964). See also State v. Ninneman, 179 Neb. 729, 140 N.W. 2 d 5 (Sup. Ct. 1966), certiorari denied 385 U.S. 838, 87 S. Ct. 85, 17 L. Ed. 2 d 72 (1966).
We hold that even though defendant was disabled, he was not under arrest, in custody, or otherwise deprived of his freedom by the authorities when he made the admissions, and that Miranda (and, a fortiori, Escobedo) would not have applied to this case even if the trial had taken place after Miranda was decided.
In Miranda the Court said:
"* * * the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (86 S. Ct., at p. 1612 (1966); emphasis supplied)
"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be ...