State v. Haines, A--81

• Decision Date: 30 January 1956
• Docket Number: No. A--81,A--81
• Citation: 20 N.J. 438,120 A.2d 118
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John C. HAINES, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 438

20 N.J. 438

120 A.2d 118

STATE of New Jersey, Plaintiff-Respondent, v. John C. HAINES, Defendant-Appellant.

No. A--81.

Supreme Court of New Jersey.

Argued Jan. 16, 1956.

Decided Jan. 30, 1956.

Charles A. Cohen, Camden, for defendant-appellant (Samuel P. Orlando, Camden, attorney, and John S. Conroy 3d, Associate atty., Burlington).

David D. Furman, Deputy Atty. Gen., for respondent (Grover C. Richman, Jr., Atty. Gen., and Saul S. Schechter, Deputy Atty. Gen., attorneys).

The opinion of the court was delivered by

VANDERBILT, C.J.

This appeal presents us with a further development in the case of State v. Haines, 18 N.J. 550, 115 A.2d 24 (1955), arising by reason of the fact that several similar indictments for false swearing handed down in the Maple Shade investigation which depended primarily for their proof upon the testimony of one George Page were dismissed on motion of the Attorney-General, because in his opinion it was fruitless to proceed further with the prosecutions. The case is before us by reason of the denial by the Burlington County Court of the defendant's motion for a new trial on the ground of newly discovered evidence and a certification on our own motion of the appeal from that order while it was pending in the Appellate Division of the Superior Court.

During the years 1952 and 1953 the Burlington County grand jury was engaged in an extensive investigation concerning alleged violations of the gambling laws in that county and misconduct in office of certain public officials in connection therewith. It heard about 175 witnesses on 33 or 34 occasions over a period of approximately 15 months, which resulted in the handing down of 17 separate indictments charging that 17 of the witnesses, mostly public officials, who appeared before it in the investigation had willfully sworn falsely; see In re Pillo, 11 N.J. 8, 93 A.2d 176 (1952); State v. Pillo, 15 N.J. 99, 104 A.2d 50 (1954); State v. Peterman, 29 N.J.Super. 236, 102 A.2d 398 (App.Div.1953). The defendant Haines was one of those public officials.

Five of the persons indicted pleaded Non vult in February and March of 1954, before the trial of the defendant Haines, and received suspended sentences and were fined or placed on probation. A sixth pleaded in March of 1955 and received similar treatment.

In October 1954 the State moved its case against the defendant, John C. Haines. At that trial the only witnesses against Haines were the deputy foreman of the grand jury who administered the oath to the defendant, the stenographer who took down the questions and answers at the grand jury hearing, and George Page. Another witness, Anthony Marinella, was called on behalf of the State, but he consistently refused to answer any of the material questions asked him on the ground that he might thereby tend to incriminate himself. The principal witness, Page testified to several events involving Haines, which Haines had previously denied under oath in his testimony before the grand jury on its investigation. These events are set forth in detail in the previous opinions in this case, particularly on pages 561--562 and pages 567--570 of 18 N.J., 115 A.2d 24. The defendant denied everything and produced evidence tending to depreciate the credibility of Page and show that he was motivated by spite and a desire for revenge. The jury returned a verdict of guilty. On appeal, certified by this court, the conviction was affirmed by a four to three decision; 18 N.J. 550, 115 A.2d 24.

As soon as the mandate of affirmance came down from this court on that appeal, the defendant moved before the same trial judge, R.R. 3:7--11(a), for a new trial on the ground that newly discovered evidence which bore materially on the credibility of Page, and facts occurring subsequent to the trial which also bore materially on the credibility of Page, in all fairness and justice required that such relief be granted to him. We shall dispose of the 'newly discovered evidence' issue first.

1. On the trial of John Pizzio, a Burlington City policeman and one of the 17 public officials indicted, which was held after the Haines trial, George Page gave the following testimony 'Q. Didn't you use the name of Kenneth Page at one time also? A. no.

'Q. Never? A. No. * * *'

Haines says that evidence was subsequently introduced in that trial, and not refuted by Page, which tended to show that George Page had represented himself as his brother 'Kenneth Page' and, therefore, the answers given by him to the questions set forth were not true. For the purposes of our decision in this case, we assume the correctness of that assertion.

In denying the motion for a new trial the trial judge pointed out that the question of Page's credibility had been thoroughly contested on cross-examination by experienced counsel and became the chief, if not the only, issue in the case, and the conclusion to be drawn from the discussion of these proceedings as they appear in the record before us is that the trial judge did not feel that the 'newly discovered evidence,' if it had been admitted on the trial, would have changed the result. With this conclusion, at least, we agree.

Motions for new trials, disruptive as they are of the judicial process, are not favored and are properly entertained with caution by the trial courts. State v. Hunter, 4 N.J.Super. 531, 536, 68 A.2d 274 (App.Div. 1949). But when the necessary elements appear, caution must give way to reason and justice and the application for such relief granted. Kursheedt v. Standard Bleachery Co., 77 N.J.L. 99, 71 A. 39 (Sup.Ct.1909); Ellis v. F.L.C. Martin Automobile Co., 77 N.J.L. 339, 72 A. 438 (Sup.Ct.1909); Dundee Manufacturing Co. v. Van Riper, 33 N.J.L. 152 (Sup.Ct.1868); Young v. McPherson, 3 N.J.L. 455 (Sup.Ct.1811); Spencer v. Erie R. Co., 79 N.J.L. 5, 75 A. 155 (Sup.Ct.1909); Carr v. Riskin, 8 N.J.Misc. 659, 151 A. 380 (Sup.Ct.1930).

Most recently in State v. Vaszorich, 13 N.J. 99, 130, 98 A.2d 299 (1953), and previously in State v. Bunk, 4 N.J. 482, 486, 73 A.2d 245 (1950), this court set forth the test necessary to be met to entitle a party to a new trial on the ground of newly discovered evidence. We said (1) that the evidence must be material to the issue, not merely cumulative, nor impeaching, nor contradictory; (2) that it has in fact been discovered since the former trial and could not have been discovered before such trial by the exercise of due diligence; and (3) that it would probably change the result if a new trial was granted.

The defendant contends that all three factors have been satisfied, and that if the evidence is construed as 'cumulative' such factor in and of itself does not necessarily prevent a new trial from being granted to him, Mulock v. Mulock, 28 N.J.Eq. 15 (Ch.1877).

Assuming that the proffered evidence meets the requirement of element (1), we are not satisfied that the requirements of elements (2) and (3) are met within the meaning of the rule.

The fact, of course, is that the specific evidence--the denial by Page that he used an alias, and proof of the fact to the contrary--could not have been known until those facts occurred on the Pizzio trial which was subsequent to the Haines trial. Therefore, strictly viewed, it is a fact discovered after the former trial which could not have been discovered before such trial by the exercise of due diligence. But to extend the doctrine set forth in the Bunk and Vaszorich cases, supra, to include evidence which did not exist at the time of the trial sought to be nullified but which became a fact only After that trial is most dangerous, indeed. Even counsel conceded on oral argument that it would be pushing the present rule as to newly discovered evidence beyond its possible limits to grant a new trial on this ground. It is not the same as a fact subsequently occurring that has direct and positive relation to the guilt or innocence of the defendant, such as a confession by another of the commission of the crime for which the defendant has been found guilty. This type of Ex post facto event relates directly to the state of facts that existed prior to the conviction. But the commission of an act by a witness subsequent to his testimony given in a trial which is only a single factor tending to impair his credibility at that subsequent date is a dubious basis for setting aside a trial on the ground that this constitutes 'newly discovered evidence.'

By the weight of authority the test is whether the evidence if introduced is such as ought to have led the jury to a different conclusion--one of probability and not mere possibility, State v. Bunk, supra, 4 N.J. 482, and the cases cited therein on pages 486 and 487, 73 A.2d 245. We think in the circumstances here where, as we have indicated, counsel for the defendant 'had one purpose in mind and that was to make known the fact that George Page is a liar,' the probable effect solely of this 'newly discovered evidence' would not have been to change the result already reached.

2. As a result of this motion for a new trial by the defendant, we now learn of the very positive adverse impression of the trial judge with respect to Page's testimony given at the Haines trial. On the hearing of the motion he said:

'If I am not already on record in this respect, I will put myself on record at this time. If you asked me if I would believe the witness George Page, I would say unhesitatingly 'no' * * *'

'Well, I will say that I would not believe him and the testimony that he offered here in this court room did not impress me * * * my position is still that the matter of credibility was for the jury to determine and it found a conclusion of guilty and I have no veto power over what the jury did, even though I am in disagreement with that verdict. I have no veto power because my understanding was and still is, in spite of the comments in the dissenting opinion, that it is a matter of credibility and if a jury sees fit to...