On certification to the Superior Court, Appellate Division, whose opinion is reported at 138 N.J. Super. 103 (1976).
For affirmance -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Schreiber, J. Pashman, J., concurring. Pashman, J., concurring in the result.
[76 NJ Page 131] Frank Sheldrick and Paul Sands were tried as co-defendants for various crimes, including murder. Sheldrick was found guilty of murder in the first degree,
assault with an offensive weapon, threatening the life of another and illegal possession of a firearm. Sands was found guilty of murder in the second degree and illegal possession of a firearm. The Appellate Division, rejecting their several grounds of appeal, affirmed their convictions. 138 N.J. Super. 103 (1975). We granted their petition for certification limited to the question of admissibility of prior convictions to attack credibility. 71 N.J. 345 (1976).
The salient facts with respect to the crimes may be briefly summarized. The record demonstrates that some antagonism had existed between the defendants and the decedent William White. On the night of August 6, 1973, the defendants went to the Vesuvius Bar on Dewey Avenue in West New York for the purpose of seeking out the decedent. The decedent White and his wife worked in the tavern, which was owned by Mrs. White's father, Louis Indelicato. The State produced proof through Mrs. White, her father, and a patron, that the defendant Sheldrick shot the decedent with a sawed-off shotgun and then threatened Mr. Indelicato. When the shooting occurred, Sands who had been with Sheldrick ran outside.
West New York police officers William Sherman and Jack DeLorenzo, who were in a radio car on Dewey Avenue near the Vesuvius when they heard the gunshot, observed smoke emanate from the tavern, and saw Sands dash out into the street and throw a pistol into the alley. Officer Sherman promptly arrested Sands and retrieved the pistol. He then entered the Vesuvius and arrested Sheldrick who was in the process of existing with the sawed-off shotgun in hand.
Sands did not testify. Sheldrick claimed that the decedent White had come toward him with the shotgun, that he grabbed the barrel, and that the gun accidentally went off killing White. Over his objections, prior convictions were admitted into evidence to affect his credibility.
We granted certification to reexamine our decision in State v. Hawthorne, 49 N.J. 130 (1967), in which we had interpreted N.J.S.A. 2A:81-12 to require the evidentiary
admission of every conviction of any crime to affect the credibility of any witness.
We have hitherto rejected attacks on the principle of State v. Hawthorne. State v. Mustacchio, 57 N.J. 265 (1970); State v. Gallicchio, 51 N.J. 313 (1968); State v. Adams, 50 N.J. 1 (1967). For some critiques see State v. Johnson, 65 N.J. 388, 395 (1974) (Pashman, J., concurring); Comment, 70 Yale L.J. 763, 775-778 (1961); Comment, 78 Harv. L. Rev. 426, 440-443 (1964); Note, 22 Rutgers L. Rev. 360 (1968); Ladd, "Credibility Tests -- Current Trends," 89 U. Pa. L. Rev. 166 (1941); 3A Wigmore, Evidence, § 982 at 839-840 (Chadbourne rev. 1970). The opinion in State v. Hawthorne is bottomed on the history and language of the act, and on the significance to be drawn from a statute providing for expungement of criminal records, N.J.S.A. 2A:164-28. Accordingly, we have reexamined each underpinning of the holding.
N.J.S.A. 2A:81-12 reads as follows:
For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter or his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence. * * *.
This statute was modeled after section 9 of an 1874 act revising the law of evidence. That section stated:
The interest of a witness in the event of the action or proceeding, or his conviction of a crime, may be proved by an examination of such witness or otherwise, and his answers upon such examination may be contradicted by other evidence.
Section 1 of the 1874 act provided
[t]hat no person offered as a witness in any action or proceeding of a civil or criminal nature, shall be excluded by reason of his having been convicted of crime, but such conviction may be shown on the cross-examination of the witness, or, by the production of the record thereof, for the purpose of affecting his credit.
This section can be properly appreciated only with an understanding of the historical context in which it was enacted.
At common law a criminal defendant could not testify on his own behalf. 2 Wigmore, supra § 579 at 701. This prohibition existed irrespective of the qualifications of a witness (to be differentiated from a party). The qualifications of a witness were declared by the Legislature in a statute enacted on June 7, 1799 which provided
[t]hat no person, who shall be convicted of blasphemy, treason, murder, piracy, arson, rape, sodomy, or the infamous crime against nature, committed with mankind or with beast, polygamy, robbery, conspiracy, forgery, or larceny of above the value of six dollars, shall, in any case, be admitted as a witness, unless he or she be first pardoned; and no person, who shall be convicted of perjury, of subornation of perjury, although pardoned for the same, shall be admitted as a witness, in any case. [Laws of New Jersey 1703-1820, p. 462 (1831 Revision)]
The 1799 statute did not affect the general disqualification of a criminal defendant to testify on his own behalf. It applied to any witness as distinguished from a defendant who had been convicted of one of the enumerated crimes.
In 1871, the Legislature finally lifted the common law prohibition against a criminal defendant's testifying on his own behalf. By L. 1871, c. 40, § 1, the Legislature provided that "upon the trial of * * * any person charged with crime, the [defendant] shall be admitted to testify as a witness * * * in his own behalf." See J. Thayer, Cases on Evidence 1117 n. 1 (2d ed. 1900). Therefore until 1871, a defendant could not testify even if he had not been convicted of any of the crimes listed in the 1799 act. Many significant crimes were not included. As noted by the court in State v. Henson, 66 N.J.L. 601, 605-606 (E. & A. 1901):
There are many crimes of great turpitude not specified in the  act. Among others are counterfeiting, sheriff aiding escape of his prisoners, embracery, bribery, compounding of crimes, extortion by judges, fraudulent voting, intentional injury to public property, obstructing railways, producing abortion and larceny under the value of $6.
Convictions not specified in the act were not admissible to affect credibility, this on the theory that an answer to a question could not be compelled when the answer might tend to dishonor or disgrace the witness. State v. Bailly, 2 N.J.L. 396 (Sussex Oyer & Terminer, 1807). For the same principle see Fries v. Brugler, 12 N.J.L. 79 (Sup. Ct. 1830); Vaughn v. Perrine, 3 N.J.L. 299 (Sup. Ct. 1811). In 1874 the 1799 act was repealed. As a result, between 1871 and 1874, a criminal defendant, like any other witness, could testify provided he had not been convicted of any of the offenses listed in the 1799 act, and, if he did testify, prior convictions would not be used to affect his credibility.
In State v. Hawthorne, we concluded that the 1874 act was intended to remove the harsh disability imposed by the 1799 statute on persons convicted of the enumerated crimes. We reasoned that the clause permitting prior convictions for impeachment was intended to substitute for that disability a general power in the prosecutor to use any prior conviction to impeach a witness. 49 N.J. at 133-135. After full reconsideration we have concluded this view was mistaken.
First, the 1874 statute embodied a comprehensive statement of the law of evidence, and its interpretation cannot be left to inferences drawn from its interplay with the 1799 act. The relationship of the 1874 statute and the 1799 act was raised in State v. Henson, supra. The defendant contended that the only convictions admissible to affect a defendant's credibility were those enumerated in the 1799 act. The court, in rejecting the contention, held that the 1799 act and the 1874 act must be considered independently because
[the 1799 act] was not repealed by force of the said first section of the act of 1874, because it was inconsistent with it, but there was an express ...