The State appeals, pursuant to leave granted, from an order of the trial court setting aside a jury verdict finding defendant guilty of possession of lottery slips and knowingly engaging as an employee of a lottery, and from an order granting a new trial. A previous trial ended in mistrial when the jury reported it was unable to come to a verdict.
The State's proofs were to the following general effect: It was shown that defendant had been kept under surveillance on three separate occasions in May 1972 when he met, each time in the vicinity of Montclair Avenue and Parker Street in Newark, with one Abrusio, known to be a pick-up man for a numbers operation. On each occasion the meetings took place in automobiles registered to members of defendant's family and on each occasion Abrusio was observed to carry a brown paper bag or a bag wrapped in newspaper into the car occupied by defendant.
On June 14, 1972 State Police, armed with a search warrant, conducted a search of the vehicle occupied by defendant after having again observed Abrusio enter the vehicle with a paper bag. They discovered some empty paper bags and a paper bag, similar to that carried by Abrusio, which contained betting slips. A partial tabulation indicated that the lottery play contained in the bag exceeded $5,000. Abrusio attempted
to flee from the approaching police but was quickly apprehended.
On defendant's case Abrusio testified to the effect that the bag containing the lottery play belonged to him; that defendant was unaware of what was in it; that he met defendant in order to repay a loan, and that the bag, which was on his lap, fell to the ground outside the car when he attempted to flee from the police.
The jury returned a verdict of guilty on both charges against defendant. The trial judge later granted defendant's motion for a new trial.
Defendant raises the threshold question of whether the State has a right to appeal. State v. Sims, 65 N.J. 359 (1974), decided after this case was tried, indicates that the State may seek leave to appeal from any new trial order granted in a criminal case, although such leave should not always be granted. Id. at 373.
Leave to appeal was granted to the State in this case prior to the date Sims was decided. In light of the principles enunciated in Sims, we believe that order was proper and see no occasion for reconsideration of our determination. We note that defendant did not seek a review of this court's interlocutory order granting such leave.
The sole ground on which the trial judge granted defendant's motion for new trial was the prosecutor's action in calling defendant's wife, in the presence of the jury, as a witness for the State. The question before this court is whether that action by the prosecutor constituted a valid basis for setting aside the jury verdict.
The great majority of the jurisdictions which have considered this problem has held that it is improper for the prosecutor to call defendant's spouse as a witness under such circumstances. However, most of such courts hold that such action does not require a reversal as a matter of law, but that each case must be determined on the basis of the particular ...