State v. Caporale

• Decision Date: 08 November 1954
• Docket Number: No. A--38,A--38
• Citation: 16 N.J. 373,108 A.2d 841
• Parties: STATE of New Jersey, Plaintiff-Respondent. v. Marconl CAPORALE, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 373

16 N.J. 373

108 A.2d 841

STATE of New Jersey, Plaintiff-Respondent. v. Marconl CAPORALE, Defendant-Appellant.

No. A--38.

Supreme Court of New Jersey.

Argued Oct. 25, 1954.

Decided Nov. 8, 1954.

B. Franklyn Boggia, Hackensack, for appellant (Joseph H. Gaudielle, Hackensack, attorney).

Ralph L. Fusco, Deputy Atty. Gen., for the State (Guy W. Calissi, Bergen County Pros., Hackensack, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The defendant, a member of the bar of New Jersey, was convicted of the crime of subornation of perjury in the Bergen County Court.

The indictment, Inter alia, charged that he, on the 13th of June 1951, procured Victor Nicoletta to commit corrupt and willful perjury before the Bergen County grand jury in its investigation concerning violation of gambling laws in said county and unlawfully persuaded Nicoletta, upon his being called as a witness, to depose falsely under oath in a matter material to the issue then being considered by the grand jury, that he, Nicoletta, had on his own behalf, on or about March 15, 1951 and other dates, at Fairview, New Jersey, kept and operated a slot machine used in gambling for money prizes and that one Albert Capuzzi had no part in the keeping or operation of such gambling device, whereas in fact the defendant Caporale well knew that said Capuzzi participated with Nicoletta in the operation of said machine and the sharing of the receipts of said machine, whereby he suborned willful and corrupt perjury in violation of R.S. 2:157--1, now N.J.S. 2A:131--1, N.J.S.A.

A synopsis of the evidence presented by the State reveals that Nicoletta testified Capuzzi was involved with him in the maintenance and operation of the machine and that from 1949 to the date of his arrest they weekly had split between them the loss on the pay-offs and the profits on the collection of moneys by the machine. He admitted he lied to the grand jury in testifying before it that Capuzzi had no part in the pay-offs, whereas in fact Capuzzi and he had split the losses and the collections.

He was suborned, he testified, on June 13, 1951 to commit such perjury by the defendant Caporale, who was fully cognizant of the true facts disclosed to him by Nicoletta. The defendant urged Nicoletta to assume full responsibility for the operation, maintenance and use of the machine for gambling purposes and to involve no one else, assuring him there was no need to worry about committing perjury in this respect as they 'would take care of everything.'

The State's second witness was Victoria Nicoletta, wife of Victor, who corroborated the testimony given by her husband that Capuzzi received his split on the receipts from the joint operation of the machine. She worked in the restaurant premises, had opportunity to observe the transactions between her husband and Capuzzi, and once or twice personally negotiated the split of the profits with the latter.

There was an exhibit, S--2, indicating a record of pay-offs. This memorandum, it was testified, was kept by the Nicolettas so that it could be shown to Capuzzi at the time of the settling of their financial transactions.

After judgment and the imposition of sentence, the defendant appealed to the Appellate Division and we certified the cause here on our own motion.

Two points are raised on appeal: first, it was error for the court to deny the defendant's motion for a judgment of acquittal at the end of the State's case because the purported corroborative evidence as to the commission of the perjury was legally insufficient, and, secondly, the verdict was contrary to the weight of the evidence.

The first point, in addition to the ground already stated, is premised upon the further underlying contention that Mrs. Nicoletta's testimony is so vague, ambiguous and indefinite as not to meet the standards and requirements of the corroboration rule, plus the fact that the common law concept of unity of husband and wife excludes her evidence as corroboration required by law, on the theory that it is not proof emanating from an independent source distinct and separate from the evidence furnished by the alleged perjuror.

The requirement of corroborative evidence was discussed at length by Justice Brennan in State v. Bulach, 10 N.J.Super. 107, 110--111, 76 A.2d 692, 694 (App.Div.1950), wherein he said:

'The requirement in perjury cases of corroborative evidence of the testimony of a single witness, an exception to the rule that one witness' testimony suffices in most cases, has been criticized by text writers and some courts. VII Wigmore on Evidence (3rd Ed.1940), sections 2040, 2041; Annotation, 111 A.L.R. 825. However, the requirement is firmly embedded in our law. State v. Taylor, (5 N.J. 474), 76 A.2d 14 (1950); Zabriskie v. State, 43 N.J.L. 640, at (page) 647 (E. & A. 1881); State v. Lupton, 102 N.J.L. 530, 133 A. 861 (Sup.Ct.1926); State v. Ellison, 114 N.J.L. 237, 176 A. 338 (Sup.Ct.1935). This does not mean that the testimony of two witnesses is required; the testimony of one witness plus proofs corroborating his evidence sufficies. The two witness rule obtaining in some states probably was not followed at any time in New Jersey, Zabriskie v. State, supra.

'* * * In this State we have adopted the test that the oath of a single witness must be supported by 'proof of Strong corroborating circumstances of such character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence,' 'something more than the mere weight of evidence in favor of the state,' Zabriskie v. State, supra, 43 N.J.L. at page 647; State v. Carlone, 109 N.J.L. 208, at (page) 211, 160 A. 551 (Sup.Ct.1932); see also State v. Lupton, supra, 102 N.J.L. at page 535, 133 A. 861; 2 Wharton's Criminal Evidence (11th Ed., 1935), sec. 913.'

The court there also held, on the defendant's motion for acquittal at the end of the State's case, it was a question for the court in the first instance whether the corroborative evidence offered to support the State's testimony was legally sufficient, relying on State v. Lupton, supra, and Gordon v. State, 48 N.J.L. 611, 7 A. 476 (E. & A. 1886).

The prosecution accepts the principle as enunciated in State v. Bulach, supra, but says much of what is stated regarding 'proof of strong corroborating circumstances' applies only where there is direct proof merely by oath of a single witness as to the falsity of the testimony previously given, while in the case under consideration the testimony under oath of the second witness as to the pertinent and material issues of falsity supplied the required corroboration.

This position is amply supported by the authorities and is not counter to the governing principle as stated in the Bulach case, supra. In saying that the 'two witness rule obtaining in some states probably was not followed at any time in New Jersey,' the court correctly enunciated the proposition that we do not in this State require the direct testimony of two witnesses in a charge of perjury to sustain a conviction. The oath of a single witness, supported by proof of strong, corroborating circumstances, is sufficient. This by no means rules out the supplying of the necessary corroboration by the direct testimony of one or more additional witnesses when such evidence is available.

Evidence is corroborative when, in conjunction with other proof, it tends to establish the material facts in issue. Compare State v. Ellison, supra, with State v. Taylor, supra.

The attack on Mrs. Nicoletta's testimony as being too vague, ambiguous and indefinite to be corroborative within the meaning of this rule is predicated on the contention that it failed to tie Capuzzi in with any illegal gambling operation. The defendant argues that her recountal of Capuzzi's visits to the restaurant is entirely consistent with his being merely an agent of the owner for servicing and repair, and collection of the owner's half of the weekly receipts of a machine operated only for sport or amusement without pay-offs in money or other prizes.

The argument is based on a question put to her and her answer:

'Q. What do you mean when you say he came for collections? Will you describe that, please? A. Well, when they came for collections, whatever was in the machine was split fifty-fifty.'

This, it is urged, necessarily implies 'there could be no sharing in the pay-offs with Capuzzi if whatever money was in the machine was split fifty-fifty' and fails to prove 'independent and material facts and circumstances tending directly to show that Capuzzi was directly involved in the gambling operations of the machine by assuming one-half of the loss caused by the pay-offs.'

It is further asserted the use by the witness of the phrase 'when they came for collections' creates ambiguity as to whether Capuzzi or some other person was involved on the occasions, if any, when pay-off losses were deducted from the machine's earnings.

An examination of the transcript of this part of Mrs. Nicoletta's testimony quickly dispels any doubt that might arise on either point. The entire portion of the testimony leading up to the quoted question and answer relates to her contact with one Al Capuzzi, referred to by name or the pronoun 'he,' and the interchange immediately following was:

'Q. What happened to the payoffs? A. The payoffs were also split half and half.

'Q. Did you ever straighten out with him on Thursdays at any time? A. Did I?

'Q. Yes. A. Once or twice.

'Q. On the other occasions who did the accounting with him? A. My husband.

'Q. Did you know how to get in touch with Al if you needed him? A. Yes, there was a card, a business card, with a telephone number on it.'

The source of Mrs. Nicoletta's testimony was based on her...