State v. Giardina, A--130

• Citation: 142 A.2d 609,27 N.J. 313
• Decision Date: 16 June 1958
• Docket Number: No. A--130,A--130
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Samuel GIARDINA, Defendant-Appellant, and Nicholas Vanderhave et al., Defendants.
• Court: United States State Supreme Court (New Jersey)

Page 313

27 N.J. 313 142 A.2d 609 STATE of New Jersey, Plaintiff-Respondent,
v.
Samuel GIARDINA, Defendant-Appellant,
and
Nicholas Vanderhave et al., Defendants. No. A--130. Supreme Court of New Jersey. Argued May 6, 1958.
Decided June 16, 1958.

Page 314

James A. Major, Hackensack, argued the cause for defendant-appellant.

Archibald Kreiger, Deputy Atty. Gen., argued the cause for plaintiff-respondent (Charles S. Joelson, Deputy Atty. Gen., Acting Passaic County Prosecutor, attorney; Archibald Kreiger, Paterson, of counsel).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Samuel Giardina and four others were indicated for conspiracy to steal property of Pantasote Leather Company. Three pleaded 'non vult.' Giardina and defendant Harley Hollmond Stood trial and were convicted. Giardina appealed. The Appellate Division affirmed, 47 N.J.Super. 483, 136 A.2d 296 (1957), and we granted certification. 26 N.J. 244, 139 A.2d 471 (1958).

The thefts covered by the indictment spanned a period of two years. Defendant Nicholas Vanderhave was employed by Pantasote as receiving clerk and distribution clerk. He shipped Pantasote's property from its place of business to Giardina through Hollmond, a trucker.

[142 A.2d 610] Vanderhave pleaded 'non vult' and testified for the State. He related telephone conversations he had with Giardina and a co-defendant, Rosen, in which arrangements were made for delivery of the loot and payment to the witness. These calls were made to or by Vanderhave at Pantasote's plant, through the switchboard operated by its employee, Mrs. Emily Kolano. The sole issue is whether the trial court

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erred in permitting Mrs. Kolano to testify to conversations to which she had listened at the switchboard, in corroboration of Vanderhave's testimony.

There were five trunk lines and some 40 extensions. The incoming calls for Vanderhave were initially received by Mrs. Kolano and the outgoing calls were made by her at his request. Her suspicions were aroused by the furtive nature of the calls. Apparently after overhearing one or two of the conversations, she reported her suspicions to someone 'in authority' and inferentially her course was approved.

Defendant claims Mrs. Kolano violated the state and federal wire tap statutes and upon that premise claims error in the receipt of her testimony. The challenge does not implicate any constitutional provision. Evidence secured illegally by a citizen is admissible. See Eleuteri v. Richman, 26 N.J. 506 (1958). And the federal judicial rule barring evidence obtained in violation of the wire tap statute, 47 U.S.C.A. § 605, is not binding upon the states. Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952); Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957).

Hence the issue is not one of constitutional law or evidence. Rather, since an unauthorized disclosure of an illegally intercepted message itself constitutes a violation of a criminal statute, the question sought to be presented to us is whether as a matter of judicial administration we should countenance the commission of crime in our courtrooms. Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379 (Sup.Ct.1955), certiorari denied 350 U.S. 829, 76 S.Ct. 59, 100 L.Ed. 740 (1955). Our statute, which will presently be set forth in full, expressly denounces the act of testifying, and the federal statute has been so construed. Nardone v. United States, 302 U.S. 379, 382, 58 S.Ct. 275, 82 L.Ed. 314 (1937); Schwartz v. State of Texas, supra (344 U.S. at page 201, 73 S.Ct. at page 234); Benanti v. United States, supra (355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126). The suggested issue is far-reaching, and we should not resolve it unless the case necessarily requires a decision. We

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are satisfied that it does not, for the reason that Mrs. Kolano's testimony does not fall within either the state or federal acts.

We must bear in mind that we are construing criminal statutes and that the ultimate question is whether the witness is guilty of crime.

We have no difficulty with our statute, N.J.S. 2A:146--1, N.J.S.A., which reads:

'Any person who willfully and maliciously:

'a. Cuts, breaks, taps or makes any connection with a telegraph or telephone line, wire, cable or instrument belonging to any other person; or

'b. Reads, takes, copies, makes use of, discloses, publishes or testifies concerning a meassage, communication or report intended for any other person and passing over any such telegraph or telephone line, wire or cable in this state; or

'c. Uses any apparatus unlawfully to do any of such acts--

'Is guilty to a misdemeanor.'

There was no violation of subsection (a). The words, 'cuts, breaks, taps or makes any connection with' all...