State v. Carrano, A--323

• Decision Date: 24 September 1953
• Docket Number: No. A--323,A--323
• Citation: 27 N.J.Super. 382,99 A.2d 426
• Parties: STATE v. CARRANO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 382

27 N.J.Super. 382

99 A.2d 426

STATE v. CARRANO.

No. A--323.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 9, 1953.

Decided Sept. 24, 1953.

David H. Harris, Sp. Deputy Atty. Gen., for plaintiff-respondent (Theodore D. Parsons, Atty. Gen., attorney).

James A. Major, Hackensack, for defendant-appellant (Joseph H. Gaudielle, Hackensack, attorney).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The defendant appeals from a judgment convicting him of the crime of bookmaking, entered in the Law Division, Bergen County.

On September 25, 1951 police officers placed the Edgewater Iron Works, Edgewater, New Jersey, under surveillance and pursuant to a search warrant, the investigating party entered upon the premises and encountered Wilbur Prescott and another in a driveway near the building. As the party entered the building they encountered the defendant Carrano. Carrano turned and started for the interior of the building and was observed throwing away a paper which was retrieved and proved to be a scratch sheet showing the running of horses in various races that day.

One of the officers testified that Carrano stated that he was there to answer the telephones and to take bets on the telephone. There were three telephone lines in the building, one coin box telephone placed there at Carrano's request and two desk telephones in adjoining rooms. Prior to the investigating party's entry into the building, one of the officers made a call to the coin box telephone and a voice answered by saying 'Kelly.' Within a matter of approximately six minutes after the police officers entered the building, the coin box telephone rang and a police officer answered it and received a bet on the horse races. Thereafter, calls were received on all three telephones and bets were placed by the callers. The bets were directed to 'Kelly' and were received from callers using code names. A search of a desk revealed two sheets received in evidence, acknowledged by Carrano as belonging to him, which list contained customers' names, some of which corresponded to those calls taken by the police officers. Also received in evidence was a slip of paper containing the names of three horses in the first race at New York on September 10, 1951. In the rear of the building police officers found charred remnants of a racing form for September 11, 1951.

Carrano and William Prescott were placed under arrest and taken to the county courthouse in Hackensack, where both made statements. Carrano's statement was made in question and answer form in the presence of two police officers and the statement was reduced to typewritten record as it was made. Thereafter, it was testified that Carrano read the statement and at the conclusion said, 'You've got it all written down, but I'd rather sign it before my lawyer.' At the trial, the court took testimony in the absence of the jury on the question of the voluntariness of the confession and whether Carrano had acknowledged the accuracy of his statement reduced to writing. The court having determined that both questions should be answered in the affirmative, admitted the same into evidence. Following the ruling on the admissibility of the statement, testimony by both parties was received in the jury's presence as to the circumstances surrounding the giving of the statement and the determination of its weight was left to the jury.

The defendant contends that the trial court erred: (1) in admitting the unsigned statement into evidence; (2) in permitting the police officers to testify as to alleged telephone conversations with persons desiring to place bets; (3) in admitting the charred remnants of racing forms found outside the building; and (4), in admitting into evidence a newspaper known as The Morning Telegraph.

The Court of Errors and Appeals considered the question of admissibility of unsigned confessions in the case of State v. Donato, 106 N.J.L. 397, 148 A. 776 (1930). In that case statements were given by four alleged criminals and were reduced to writing by police officers and presented to the confessors, two of whom signed the statements and two of whom did not deny the accuracy of the statements but declined to sign them. Finding the statements to have been given voluntarily without any force, threats or promises whatsoever, and to have been acknowledged as accurate records of the oral utterances, the court held the statements to be admissible.

The court stated, in part, 106 N.J.L. at pages 405, 406, 148 A. at page 780:

'Confessions are admissions, made at any time by a person accused of crime, stating or suggesting the inference that he committed or participated in the commission of that crime. Underh.Cr.Ev. (3d ed.), § 215. Such are the statements in question. The statements were in writing and were respectively taken down by police officials. * * *

'* * * No suggestion was then made that the statements were inaccurate in the slightest respect. The undisputed proof at the trial was that they were accurate.

'We think there was no error prejudicial to such defendants in their admission in evidence. It is said in 2 Whart.Cr.Ev. 1329, that 'it is not necessary to the admissibility of a written confession * * * that it should be signed by the accused' (citing State v. Haworth, 24 Utah 398, 68 P. 155; State v. Eaton, 3 Harr. 554; State v. Johnson, 5 Harr. 507). * * * the undoubted rule is that a confession of the accused which was reduced to writing by another person and was read over to or by the accused, and which was signed or otherwise admitted by him to be correct, is as much his written confession as one prepared entirely by his own hand would be; and when made voluntarily it is admissible against him. 16 C.J. 732. And where, as here, a confession of the accused, made voluntarily, which was reduced to writing by another person, but which the defendant refused to sign, when it was presented to him for that purpose, 'until he sees his counsel' or 'on the advice of counsel,' and for no other reason, it was not prejudicial error to admit such written confession, it appearing that the writing was clearly proved, before its admission in evidence, to be entirely accurate, with no evidence--not even a suggestion--that there was any inaccuracy in the writing, although the accused was accorded ample opportunity to make such showing if he could. In this connection it is to be borne in mind that the fundamental object of proof of a confession is to render it trustworthy.'

We observe the striking similarity between the Donato case and the matter Sub judice. In the matter before us the facts indicate that Carrano made a statement voluntarily in question and answer form, which statement was reduced to writing by police officers as it was made. Thereafter it was presented to Carrano and he read it and stated: 'You've got it all written down, but I'd rather sign it before my lawyer.' We are convinced that Carrano's quoted statement is an acknowledgment of the accuracy thereof and, under the authority of the case of State v. Donato, supra, the trial court properly held it to be...