Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal by defendants Sidney Jefferson, Elizabeth Jefferson and Joan Jefferson from a judgment of conviction following a trial on an indictment charging them, together with one Roy Jefferson, with the crime of assault and battery upon a police officer in violation of N.J.S. 2 A:90-4. The indictment was served as to Roy Jefferson at the trial because he was unavailable. Sidney and Roy Jefferson are brothers. Elizabeth Jefferson is the wife of Sidney and Joan Jefferson is the wife of Roy.
The State's evidence disclosed the following facts. Shortly after 3 P.M. on October 16, 1966 State Trooper Charles
O'Connor, who was patrolling on the New Jersey Turnpike, received a radio call initiated by Trooper Philip Fink in New Brunswick requesting assistance in stopping a white Chevrolet automobile which was being driven southbound on the turnpike at an excessive rate of speed. A short time later O'Connor observed the speeding Chevrolet approaching and signaled it to stop. The driver swerved the car and continued on without stopping. O'Connor pursued the car for over three miles during which it attained a speed of over 90 m.p.h. When the Chevrolet reached the Hightstown interchange its passage was blocked by two buses parked on the right shoulder of the highway and heavy traffic congestion in the southbound lanes. Defendant Sidney Jefferson, who was driving the Chevrolet in which the other defendants and Roy Jefferson were passengers, pulled to a stop with the car straddling the medial strip and the fast lane. O'Connor stopped his car behind the Chevrolet, alighted, and called several times to the driver to step out. When Sidney Jefferson failed to respond the trooper walked to the driver's side of the car, where the window was open, and told Sidney to come out and to produce his driver's license and registration certificate. When Sidney failed to comply the trooper opened the door and ordered him out. When Sidney finally came out he put his hand in his back pocket, which prompted the officer to seize his hand, push him against the car and search him.
Roy Jefferson, who was seated in the front seat of the car alighted on the roadway side and began to yell at the trooper. Concerned that Roy might be struck by the traffic, O'Connor left Sidney and went into the highway, took Roy by the arm, and persuaded him to walk towards the medial strip. The trooper heard Sidney call out, "Don't do it Roy, don't do it." Whereupon Roy struck O'Connor in the eye with his fist. The trooper testified that as he was attempting to handcuff Roy, the two women got out of the car and together with Sidney punched, scratched and grabbed him. While he was being attacked Trooper Fink arrived on the scene and assisted O'Conner in restraining the defendants.
Edward Kozabo, a Cities Service employee who was servicing a Trailways bus which was parked on the shoulder of the turnpike, and James Gallagher, the bus driver, witnessed defendants' assault upon O'Connor and crossed the turnpike to assist him. However, at this point Trooper Fink arrived and their services were not needed. During the attack O'Connor sustained a cut over his eye, a black eye and various scratches.
The defendants gave a different version of the incident. Sidney Jefferson testified he was not speeding on the turnpike, that he didn't see either Fink or O'Connor signal him to stop because of poor visibility due to the weather, and that he stopped when he saw the light of the police car behind him. He said the trooper opened his car door, grabbed him by the shirt, pulled him out of the car and searched him. Sidney testified that his brother Roy, who was asleep on the front seat, awoke and tried to get out of the car but was forced back into it by the officer. He said O'Connor bumped his head on the car door while shoving his brother Roy back into the seat. The defendants denied that any one struck O'Connor and testified that the two women never got out of the car until Fink arrived and their husbands were handcuffed.
Defendant Sidney Jefferson contends that the trial court erred in denying a motion for a mistrial made following cross-examination by the prosecutor which elicited from this defendant an admission that he had refused to give a statement to the police while in custody.
The alleged reversible error occurred when Sidney was being cross-examined as to testimony he had given of alleged police brutality suffered by his brother Roy at police headquarters after their arrest. Sidney testified that a detective questioned both him and his ...