Pillo, In re

Citation11 N.J. 8,93 A.2d 176
Decision Date08 December 1952
Docket NumberNo. A--31,A--31
PartiesIn re PILLO. In re CHRISTY.
CourtUnited States State Supreme Court (New Jersey)

Joseph A. Murphy, Trenton, argued the cause for appellant State (Theodore D. Parsons, Red Bank, attorney; Edward J. McCardell, Jr., Trenton, on the brief).

Joseph Tomaselli, Camden, argued the cause for respondents (Malandra & Tomaselli, Camden, attorneys).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

In March 1952 a Burlington County grand jury investigating alleged corrupt protection by public officials of illicit gambling activities asked 13 questions of James Christy and 44 questions of Patsy Pillo which the witnesses, asserting the privilege against self-incrimination, refused to answer. The State brought the instant proceedings in the Law Division to secure orders directing them to answer.

After a hearing at which the State agreed not to press for an order as to 6 of the questions put to Pillo and Pillo agreed he would answer 3 others, orders were entered adjudgment that Christy was not to be compelled to answer any of the questions put to him, and that Pillo was to answer only 5 of the 35 questions remaining at issue in his case. The State took appeals to the Appellate Division, which appeals we certified of our own motion.

Christy and Pillo challenge the State's right to appeal. The challenge has no merit. The orders are not adjudications upon charges of criminal contempt. Until the witness refuses to obey a court order directing him to answer there is no basis for a finding of guilt or innocence of criminal contempt. In re Schwartz, 134 N.J.L. 267, 46 A.2d 804 (E. & A.1946). Thus there is no relevancy to their argument that only a 'summary conviction and judgment' in criminal contempt is made appealable by N.J.S. 2A:10--3, N.J.S.A., and Rule 1:2--18 A, and that the State's right to appeal final judgments in criminal causes under Rule 1:2--3, made applicable to the Appellate Division by Rule 4:2--6, is not to be construed to authorize appeals to the Appellate Division from the instant orders. Nor are the orders non-appealable interlocutory orders, as they contend. If the orders stand they terminate the proceedings as to the questions at issue and so are final in quality, appealable to the Appellate Division under Rule 4:2--1(a) as final judgments entered in a Trial Division. And see In re Vince, 1949, 2 N.J. 443, 67 A.2d 141.

The grand jury's investigation followed the publication in a newspaper, the Florence Township Post, of an affidavit of one George Louis Page alleging in substance that public officials had corruptly taken money and permitted gambling games and gambling places to be operated in the county. Among other places the affidavit dealt with the operation of the Maple Shade Casino, a notorious gambling place which was raided and closed in July 1949. Page testified for the State at the hearing below and gave evidence that upon his appearance before the grand jury he repeated the charges made in his affidavit and involved Christy in the operation of the Maple Shade Casino. He was unable or unwilling to say, however, whether he had also involved Pillo.

All of the questions put to Christy and all but nine put to Pillo concerned their activities before the year 1950. Many were directed specifically to the part each played in the operation of Maple Shade Casino or to the parts played by certain named persons. Of the nine questions asked Pillo which were not expressly limited to the time before 1950, seven inquired 'do you know' named individuals, and the remaining two were: 'Q. 3. Did you ever deliver any money for him (Fred Fillipoldi) to be delivered to Tony Marinell?' and 'Q. 35. Did you ever hand any money to George Page to be delivered in connection with the operation of the Maple Shade Casino?'

The privilege against self-incrimination was developed by the common law. Historically its roots are found in the resistance of Englishmen to the so-called oath Ex officio of the ecclesiastical courts. E. M. Morgan, The Privilege Again Self-Incrimination, 34 Minn.L.Rev. 1 (Dec.1949). In modern concept its wide acceptance and broad interpretation rest on the view that compelling a person to convict himself of crime is 'contrary to the principles of a free government' and 'abhorrent to the instincts of an American', that while such a coercive practice 'may suit the purposes of despotic power, * * * it cannot abide the pure atmosphere of political liberty and personal freedom.' Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746, 751 (1886). If as some think, the decision of the United States Supreme Court in Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198 (1917), unduly contracted the scope of the privilege, recent decisions of that court, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. --- (1952), Greenberg v. United States, 343 U.S. 918, 72 S.Ct. 672, 96 L.Ed. --- (1952), have been criticized as representing extreme and over-generous interpretation and application of it. Falknor, Self-Crimination Privilege; Links in the Chain, 5 Vanderbilt L.Rev. 479 (April 1952).

The federal decisions interpret and apply the privilege as incorporated in the Fifth Amendment to the Federal Constitution. That amendment does not apply to the several states. In re Vince, supra. Indeed, since the decision in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931), in which the Supreme Court refused to extend the Fifth Amendment privilege to a witness who might face state prosecution on matters incidentally revealed by a federal inquiry, it has generally been considered settled that the privilege against self-incrimination does not extend to protect the witness as to matters that may tend to incriminate him under the laws of another jurisdiction. Annotation, 82 A.L.R. 1380, supplementing 59 A.L.R. 895; 8 Wigmore, Evidence (3d ed.1940) sec. 2258, p. 337; but see United States v. DiCarlo, 102 F.Supp. 597 (D.C.N.D.Ohio E.D.1952), and Note 66 Harv.L.Rev. 186 (Nov. 1952).

The privilege is statutory in this State and does not rest upon a constitutional provision. Under N.J.S. 2A:81--4, N.J.S.A., a witness is not ordinarily to be excused from answering any questions relevant and material to the issue. An exception is that made by N.J.S. 2A:81--5, N.J.S.A., declaratory of the common law providing that no witness 'shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate.'

Christy and Pillo argue that apart from their insistence that all of the questions at issue are privileged, they were not proper because not relevant and material to the grand jury's inquiry. The trial judge found to the contrary, and, we think, properly. It is the State's theory that public officials who corruptly failed for two years after July 1949 to cause to be prosecuted persons subject to prosecution for their parts in the operation of Maple Shade Casino are subject to indictment at any time until July 1953, that is, within the two-year period after the expiration of the time during which those responsible for the conduct of the Casino could have been criminally prosecuted. The questions asked both witnesses might readily produce answers bearing upon the actions of public officials or at least open up other avenues of inquiry in that regard. The test of relevancy and materiality in such an inquiry does not depend upon the probative value of the answer sought to establish the truth or falsity of the charge being investigated, but whether the fact to be learned from the answer to the question is so related to the subject matter of the inquiry that the facts could reasonably be said to be relevant and material to the issue. Moreover, in view of the nature of the inquiry, questions of doubtful materiality and relevancy are properly to be resolved in favor of the grand jury, at least when, as here, the complete absence of any connection of the questions to the subject matter is not made to appear.

Plainly there was no basis on the ground of privilege for excusing Christy and Pillo from answering the questions related to transactions and events which had transpired more than two years prior to the days in March 1952 when they were interrogated. The two-year statute of limitations, N.J.S. 2A:159--2, N.J.S.A.,barred any prosecution of them based on criminal facts disclosed by their answers. The privilege, by unanimous authority, does not protect against disclosure of facts in respect of which prosecution is barred by lapse of time. In practical effect the lapse of time works an expurgation of the crime and the reason upon which the privilege is based does not exist. Wigmore, supra, sec. 2279, p. 460. True, N.J.S. 2A:159--2, N.J.S.A., expressly provides that 'This section shall not apply to any person fleeing from justice.' There was testimony below, however, that Christy lived on Cedar Lane, Florence, 'continuously during the last eight years' prior to 1952, which sufficed to support the inference that he was not a fugitive from justice during the statutory period. While there was no similar proof as to Pillo's whereabouts during the period, there was nothing whatever in the record to indicate that he had fled the State, and, for reasons hereafter adverted to, he is not to be heard to contend that the statute was not available to him without some proof on his part tending to show at least that he was absent from the State. Moreover, Pillo pleaded non vult on January 19, 1950 to an indictment for keeping a gambling resort in Maple Shade and was fined $5,000. This indictment apparently grew out of his connection with the operation of the Maple Shade Casino, in which case, his conviction rendered him invulnerable to further prosecution in that regard...

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