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State v. Hawthorne

Decided: March 27, 1967.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDGAR HAWTHORNE, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Jacobs, J. (concurring in result). Justice Schettino agrees with the views expressed in this opinion. Jacobs and Schettino, JJ., concur in result.

Francis

Defendant Hawthorne was indicted for atrocious assault and battery allegedly committed on January 31, 1965. Prior to trial he moved for an order barring the prosecutor from using, on cross-examination at the trial for purposes of attacking his credibility, three previous convictions of crime. The convictions sought to be excluded were: (1) February 1945, larceny of an automobile in Baltimore, Maryland, for which he received a one-year sentence, (2) November 1945, armed robbery in Essex County, New Jersey, for which the sentence was four to seven years in State Prison, (3) 1956, robbery in Bridgeport, Connecticut, where the sentence was four to ten years. (If the last sentence had been served fully, Hawthorne would not have been out of jail when the present offense was committed. How long he had been on the street in January 1965 does not appear. It seems likely, however, that he was on parole at the time. It may be noted also that had he not been released before the end of his term in Maryland, he would not have been in New Jersey to engage in the armed robbery here.) The trial court granted the motion and executed an order suppressing the evidence of the convictions. The reason assigned was that the convictions were too remote to permit their use by the State in cross-examining the defendant at the trial for impeachment purposes. State v. Hawthorne, 90 N.J. Super. 545 (Cty. Ct. 1966). The Appellate Division granted leave to appeal, but before argument there we certified the matter on our own motion.

I

In 1799 the Legislature adopted a statute providing that no person convicted of any one of certain enumerated crimes "shall, in any case, be admitted as a witness, unless he or she be first pardoned * * *" June 7, 1799, Pat. L. p. 401, Revised Laws of New Jersey 1820, p. 462. In 1871 this over-all disqualification was ameliorated. By Chapter 40 of

the Laws of 1871 it was directed that whenever such a previously convicted person was being tried upon an indictment, accusation or allegation of crime, he should be admitted as a witness, "if he shall offer himself as a witness" in his own behalf. A further revision applicable to civil and criminal actions took place in 1874 (Revision 1709-1877 p. 378; Gen. Stats. N.J. 1895, p. 1397). In substance that revision continues to exist as N.J.S. 2A:81-12, which controls the controversy now before us. It says:

"For the purpose of affecting the credibility of any witness * * * his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence. * * *"

When defendant's motion was made to suppress the evidence of his previous convictions of crime, the trial judge felt that the word "may" in the above-quoted portion of the statute (i.e., the defendant's previous conviction of any crime "may be shown to affect his credibility") conferred on the courts discretionary power to admit or exclude such evidence. He then pointed out that under common law rules of evidence trial judges have authority to exclude proof if they find its probative value is substantially outweighed by the undue prejudice it will inflict upon the party against whom it is directed. (See Rule 4 of proposed rules of evidence, adopted by the Supreme Court on September 14, 1964, and awaiting action by the Legislature). Reasoning from these premises he concluded that the criminal convictions, the last one being about nine years prior to the criminal act pending trial, were too remote and therefore ought to be excluded at the trial because of their great potentiality for visiting a prejudice upon Hawthorne which would be greatly disproportionate to their probative value as an attack upon his credibility.

We cannot agree. In our judgment both the history of the statute and the context in which the word "may" appears refute the idea that the Legislature intended to invest the courts with discretion to admit or exclude evidence

of a defendant's previous convictions of crime. It must be remembered that in earlier days Hawthorne's' convictions would have disqualified him as a witness. Then the Legislature decided total disqualification was too harsh a sanction to add to the punishment prescribed and imposed upon the convict for his crime. In furtherance of that decision it directed that the convicted person should be admitted as a witness, if he chose to testify. But it added that if he did take the witness stand his previous conviction of crime "may" be shown for the purpose of affecting his credibility. In the context "may" connotes an authorization, a grant of permission to the parties to civil or criminal actions to show the witness's previous criminal conviction by testimonial examination or by production of the record. Plainly the option was intended to be given to the State and the defendant in a criminal case, and the plaintiff and defendant in a civil case. No time limit was imposed upon admissibility. There is simply the flat and unrestricted statement that the conviction of crime may be shown to affect credibility. The authorization represented a policy decision by the Legislature, and established, as a matter of law, the admissibility of a conviction without regard to time interval between the conviction and the person's appearance as a witness. Thus, the "may" in the statute does not bespeak a grant of permission or discretion to the trial judge to receive or reject the proof. On the contrary, the parties are invested with the option and if it is exercised the examination must be allowed or the record of conviction received when offered.

The trial judge cited Luck v. United States, 121 U.S. App. D.C. 151, 348 F.2d 763 (D.C. Cir. 1965), in support of his view as to the import of the New Jersey statute. The District of Columbia code is substantially the same as ours, saying that the fact of a witness's conviction of crime "may be given in evidence to affect his credit as a witness." The Court of Appeals declared that the word "may" leaves room for the exercise of judicial discretion respecting the admissibility

of a prior conviction of a defendant. We consider that construction strained and not justified by the context of the statute.

Reference has been made to cases in Texas, Maryland and Illinois as supporting the contention that a person's previous conviction of crime, if considered too remote by the trial judge, may be declared inadmissible to affect credibility. See, Perez v. State, 141 Tex. Cr. R. 575, 150 S.W. 2 d 402 (Tex. Crim. App. 1941), an 11-year old burglary conviction; Dallas County Water Control & Improvement District v. Ingram, 395 S.W. 2 d 834 (Tex. Ct. Civ. App. 1965), 28-year old manslaughter conviction; Travelers Insurance Co. v. Dunn, 383 S.W. 2 d 197 (Tex. Ct. Civ. App. 1964), nine-year old burglary conviction. It is true that the Texas courts exclude evidence of convictions if they are considered too remote. But the Texas statute which permits introduction of a criminal record for impeachment purposes does so in language far less broad than that of our own statute. For example, the Texas law provides that where a suspended sentence is set aside, or where the convicted criminal was placed on probation and the period of probation has expired, the underlying conviction is not admissible. Vernon's Ann. Tex. Code Crim. Proc. art. 38.29. These limitations bespeak a legislative policy qualitatively different from that expressed by the New Jersey lawmakers. The Maryland cases are not particularly significant. In Burgess v. State, 161 Md. 162, 155 A. 153, 75 A.L.R. 1471 (Ct. App. 1931), a five-year old simple assault conviction was excluded as not involving an infamous crime. Likewise in Simond v. State, 127 Md. 29, 95 A. 1073 (Ct. App. 1915), proof of a 10-year old drunkenness conviction was rejected. But not cited by Hawthorne is Cousins v. State, 230 Md. 2, 185 A. 2 d 488 (1962), where previous convictions of murder and robbery, 39 years earlier, and larceny, 26 years earlier, were declared admissible to affect credibility. The Maryland Court of Appeals, after pointing out that the statute (like ours) fixed no time limit on admissibility, said the convictions

were admissible "without reference to the time of [their] commission, for such bearing and weight on credibility as the trier of fact may give [them] under the circumstances." 185 A. 2 d, at p. 489. The Illinois case cited by defendant, People v. Henneman, 323 Ill. App. 124, 54 N.E. 2 d 745 (App. Ct. 1944), is of little weight at present on the issue now before us. Three years after Henneman the question was presented in People v. Buford, 396 Ill. 158, 71 N.E. 2 d 340 (1947). In that case error was charged in the introduction, over defendant's objection, of his previous conviction of crime on the ground that it was too remote. In upholding the admissibility of the conviction the Supreme Court said:

"The introduction of such record of conviction for the purpose of affecting the credibility of a witness, or the defendant who has voluntarily testified, is provided for by statute. That statute fixes no limitation as to the time of such previous conviction. (Ill. Rev. Stat. 1945, chap. 38, par. 734, p. 1271.) This contention cannot be sustained."

It should be noted that the Illinois statute is substantially the same as ours. See also, People v. Brown, 69 Ill. App. 2 d 212, 215 N.E. 2 d 812 (App. Ct. 1966).

Despite the many cases in our reports sustaining the cross-examination of a witness or a defendant in a criminal case about his previous conviction of crime, no case has been cited to us, and we are unaware of any, where the question of remoteness of the conviction has been raised or ruled upon. Recognition of the long-standing and unqualified language of the statute -- not any lack of ingenuity on the part of our bar -- undoubtedly presents the reason for this. In fact, the opinions of the appellate courts in discussing such proof in the context of a particular case rarely refer, except perhaps in passing, to the date of the earlier conviction of the witness. For example, see State v. Rodia, 132 N.J.L. 199 (E. & A. 1944), defendant's 15-year old conviction; State v. Arnwine, 67 N.J. Super. 483, 485 (App. Div. 1961), convictions going back at least 20 years. Moreover,

in State v. Tansimore, 3 N.J. 516, 532 (1950), defendant's conviction of murder 27 years earlier than the homicide for which he was being tried was admitted, even though he had received a pardon 14 years before the second killing. This Court held that the first conviction was ...


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