State v. Bartell

• Decision Date: 03 October 1951
• Docket Number: No. A--538,A--538
• Citation: 83 A.2d 628,15 N.J.Super. 450
• Parties: STATE v. BARTELL.
• Court: New Jersey Superior Court — Appellate Division

Page 450

15 N.J.Super. 450

83 A.2d 628

STATE v. BARTELL.

No. A--538.

Superior Court of New Jersey Appellate Division.

Argued Sept. 17, 1951.

Decided Oct. 3, 1951.

David I. Stepacoff, Perth Amboy, argued the cause for appellant.

H. Russell Morss, Jr., Elizabeth, argued the cause for respondent (Edward Cohn, Prosecutor of the Pleas of Union County, Elizabeth).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

In a criminal trial, considering the serious potentialities of a conviction, a defendant should not be required to contend with inadmissible evidence, where it appears that it may have a prejudicial effect upon a court or jury.' State v. Dietz, 5 N.J.Super. 222, 68 A.2d 777, 779 (App.Div. 1949).

In the County of Union the grand jury presented to the court an indictment alleging in separate counts that on certain specified days in September 1949 the defendant-appellant unlawfully, knowingly, corruptly, and wilfully did counsel and procure the names of seven designated unqualified persons to be registered in election districts of the fifth ward of the City of Rahway for the next ensuing general election to be held on November 8, 1949, in violation of the statute. R.S. 19:34--20, N.J.S.A. The indictment in all instances accused the defendant of knowingly counseling and procuring the registration of each of seven persons who lacked the constitutional residential qualifications to vote in the district. An order of the Union County Court denying the motion of the defendant to dismiss the indictment was affirmed by this court, sub nom. State v. Shipley, 10 N.J.Super. 245, 77 A.2d 38 (App.Div. 1950).

At the trial the court dismissed counts one, two, six, and seven and the State abandoned the prosecution of count three. The defendant was found guilty by the jury of the offenses charged in the fourth and fifth counts. The two last mentioned counts related to the alleged unlawful registrations of Jennie M. Watson and her husband, Robert G. Watson.

It is, we think, particularly important to emphasize that at the trial and upon the close of the State's proofs the defendant was exonerated from guilt on the counts which related to the alleged unlawful registrations of John Paskowitz, Jr., Olga C. Paskowitz, Helen R. Cook, Winifred Lovenstein, and Michael J. Lovenstein. Therefore the misdemeanors of which the defendant stood accused at the time he became a witness were that he had wilfully counseled and procured the names of Jennie M. Watson and Robert G. Watson to be registered on the registry list of an election district, Knowing that such persons or one of them was not qualified and entitled to vote therein.

In our review of the proceedings at the trial in response to the present appeal, our attention centers predominantly on the cross-examination of the defendant which was permitted to be pursued notwithstanding the objections of his counsel.

The boundary line at which the cross-examination of a party as distinguished from a mere witness ceases to be a matter of right and enters into the discretionary zone of the trial judge has been the subject of some divergency of opinion. In Disque v. State, 49 N.J.L. 249, 250, 8 A. 281, 282 (Sup.Ct. 1887), Chief Justice Beasley remarked: 'Since the passage of the statutes capacitating parties as witnesses, it has been the general practice, both with respect to civil and criminal procedure, to permit such testifying party to be cross-examined to the whole case, and such judicial action, being founded in discretion, is not a matter on which error can be assigned.'

In Prout v. Bernards Land & Sand Co., 77 N.J.L. 719, 73 A. 486, 487, 25 L.R.A.,N.S., 683 (E. & A.1909), it was stated: 'The discretion of the trial court in regulating and limiting the range of cross-examination is very great, and extends, among other things, to matters affecting the credibility of the witness and matters not directly relevant to the issue. So in Jones v. (Mechanics' Fire) Insurance Company, 36 N.J.L. 29, 42, which was a suit on a fire insurance policy, it was held no error to exclude questions on plaintiff's cross-examination as to how much he was worth, and what debts he owed, these matters not being directly relevant to the issue, and so within the court's discretion. But as to matters directly in issue or directly relevant to the issue, there is no discretionary power. The rule is stated in Jones on Evidence, § 821, thus: 'Although the court may exercise a reasonable discretion in regulating or limiting the cross-examination, yet it is clearly error to exclude cross-examination on subjects included in the examination in chief, where such ruling is prejudicial. So far as such cross-examination of a witness relates either to facts in issue or facts relevant to the issue, it may be pursued by counsel as a matter of right.' See, also, Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106.'

The subject was again discussed in Baus v. Trenton, &c., Traction Corp., 100 N.J.L. 364, 126 A. 473 (E.&A.1924), in which Justice Kalisch disagreed with the prevailing opinion concerning the rule of evidence.

It is observed that Chief Justice Gummere delivering the opinion of the court in State v. Grover, 104 N.J.L. 10, 12, 139 A. 417, 418 (Sup.Ct.1927), said: 'But the rule upon which the objection was based has no application where the cross-examination is of a person who is a defendant in a criminal trial. In such a situation, when the subject of interrogation is relevant, the extent of the cross-examination of the defendant into pertinent facts, not touched upon by direct examination, is a matter resting entirely in the discretion of the trial court. Disque v. State, 49 N.J.L. (249) 250, 8 A. 281.'

There would seem to be little, if any, doubt that a cross-examination solely tending to test the credibility and trustworthiness of any witness rests in the sound discretion of the trial judge subject only to the consequences of its abuse, State v. Todaro, 131 N.J.L. 59, 34 A.2d 807 (Sup.Ct.1943), affirmed 131 N.J.L. 430, 37 A.2d 73 (E.&A.1944), appeal dismissed, 323 U.S. 667, 65 S.Ct. 73, 89 L.Ed. 542 (1944), whereas cross-examination of a party on matters directly in issue or directly relevant to the issue is a matter of right. Fidelity Union Trust Co. v. Sayre, 137 N.J.Eq. 179, 44 A.2d 25 (E. & A.1945).

While a liberal and rigid cross-examination of a defendant in a criminal case is often fully warranted (vide, State v. Hauptmann, 115 N.J.L. 412, 420, 180 A. 809 (E. & A.1935), yet it must have its legitimate boundaries, and we regard the present case as illustrative.

The three inescapable facts are that before the defendant submitted himself to cross-examination, the State had already failed to prove the guilt of the defendant on those charges relating to his alleged corrupt participation in the registrations of Mrs. Cook and Mr. Paskowitz. Indeed, the State had voluntarily abandoned the prosecution of the third count which pertained to the registration of Mrs. Cook. Moreover the offenses (Watsons, counts four and five) for the commission of which he was then being tried were alleged to have occurred on September 19, 1949, and the offenses (Paskowitz, counts one and two) of which he had been exonerated and concerning which he was also cross-examined were alleged to have occurred three days later on September 22, 1949.

Over the timely objections of his counsel the defendant was directed to answer the following questions propounded by the Assistant Prosecutor:

'Q. I show you Exhibit S--1, being registration No. 349786 bearing signature of Helen R. Cook. Did you take that certificate at the Cook residence in Rahway?

'Q. How did you record the answers that Mr. Cook gave you?

'Q. You have it there, the sheet. What did Mrs. Cook tell you about her residence in Union County?

'Q. What did you do with the registration certificate on the attached sheet after Mrs. Cook signed it?

'Q. Did you take her oath on this sheet? Did you cause her to swear to it?

'Q. I show you Exhibit S--6--

'Mr. Ryan: If your Honor please, may I ask that I might be relieved of being a common nuisance with these objections which your Honor understands I make only pro forma, for the sake of the record, and if the Prosecutor is now going through all these other sheets or registration sheets connected with the other counts in the indictment, the counts that have been dismissed, can it be understood that I make the same objection to that character of examination or questions?

'Mr. Morss: That is satisfactory to the State.

'Mr. Ryan: Then I won't have to be a common nuisance here.

'The Court: All right.

'Q. I show you Exhibit S--6 and ask you if you recognize that sheet. * * *

'Q. Do you recognize the signature on it? * * * 'Q. You know John Paskowitz, don't you? * * *

'Q. Did you take registration sheets to his home on Fernote Street in Rahway? * * *

'Q. You caused him to register to vote, is that correct? * * *

'Q. Did you ask him any questions about his residence? * * *

'Q. It is a fact that you knew how long he had been living, didn't you? * * *

'Q. You knew how long he lived in Rahway, didn't you? * * *

'Q. Who owned that house at 1608 Fernote Street in Rahway? * * *

'Q. Who was the attorney? * * *

'Q. Do you recall instituting a suit for possession of these premises in the Linden District Court on or about the 6th of October, 1948, against Fred F. Ehrmann?

'Q. Do you know when Mr. Paskowitz moved to Rahway?

'Q. What did you learn yesterday that you did not know before? * * *

'Q. Do you mean that until yesterday you had no idea that Mr. Paskowitz did not move down until January, 1949? * * *

'Q. Do you mean to say that in the preparation of your defense you made no effort to learn when Mr. Paskowitz first moved to Rahway? * * *

'Q. In other words, despite what has been said in this indictment, you were satisfied with what you knew prior to the...