State v. Kobylarz

• Decision Date: 18 March 1957
• Docket Number: No. A-80,A-80
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Frank KOBYLARZ, Defendant-Appellant, and Raymond Bednarski, Defendant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 250

44 N.J.Super. 250

130 A.2d 80

The STATE of New Jersey, Plaintiff-Respondent, v. Frank KOBYLARZ, Defendant-Appellant and Raymond Bednarski, Defendant.

No. A-80.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 25, 1957.

Decided March 18, 1957.

John E. Selser, Hackensack, for appellant.

William J. Arnold, Hackensack, for the State. (Guy W. Calissi, County Pros., Hackensack, William C. Brudnick, Sp. Asst. Pros., River Edge, on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

On May 31, 1956 the grand jury of the County of Bergen presented to the court an indictment charging the defendant Frank Kobylarz and one Raymond Bednarski with a conspiracy to make and take in the Borough of Wood-Ridge what is commonly known as a book upon the running of horses, mares and geldings, which unlawful project was alleged to have been pursued from June 1, 1955 until on or about August 25, 1955. Not unprecedentedly in such prosecutions the defendant Bednarski retracted his plea of not guilty to the accusations of the indictment, entered a plea of guilty thereto, and testified on behalf of the State in its prosecution of the defendant Kobylarz, who was upon trial by jury convicted of the alleged offense.

Initially we may announce in response to the defendant's first ground of appeal that we have thoughtfully examined the evidence introduced by the State and also that submitted on behalf of the defendant and conclude that there was relevant and competent evidence when the State rested and at the completion of the testimony from which a logical inference of the defendant's guilt of the alleged offense could be deduced by the jury. State v. Picciotti, 12 N.J. 205, 96 A.2d 406 (1953); State v. Huff, 14 N.J. 240, 249, 102 A.2d 8 (1954); State v. Rogers, 19 N.J. 218, 231, 232, 116 A.2d 37 (1955); State v. Kollarik, 22 N.J. 558, 564, 126 A.2d 875 (1956), are expressive of the test. Moreover, a conspiracy may be proved by circumstances from which the jury can logically infer its existence. State v. Carbone, 10 N.J. 329, 341, 91 A.2d 571 (1952). The motions of the defendant for judgments of acquittal were properly denied.

Another reason assigned for the reversal of the conviction pertains to the cross-examination of the defendant concerning his previous conviction of crime.

On direct examination counsel for the defendant deemed it to be perspicacious in the course of his interrogation unobtrusively to propound the following question to the defendant: 'Some years ago you were convicted of a crime, weren't you?' The answer was 'Yes, sir.'

The following quotation extracted from the transcript exhibits the subsequent cross-examination of the defendant ament the subject:

'Q. What was the crime you were convicted of?

'The Court: Just a minute.

'Mr. Selser: I object to that question, if your Honor please.

'Mr. Galda: May I be heard on the question?

'Under direct examination, Mr Selser asked whether he was convicted of crime years ago.

'The Witness: That's correct.

'Q. What was the crime?

Mr. Selser: I object to it.

'The Court: I will allow it.

'The witness: What was the crime?

'Q. Speak loudly and clearly so we can all hear it. A. The crime--I really don't remember offhand, to be honest with you. I don't know much about--I know I pleaded to a crime. I pleaded not vult to a crime.

'Q. What was the crime? A. I think it was bookmaking. I am not sure.

'Q. Bookmaking. Were you convicted for another crime? A. I was convicted of another one?

'Q. Were you, sir? A. Probably if you have it there.

'Q. What was that crime? A. That crime, I don't know. That was twenty-five or more years ago, I believe.

'Q. In 1951 were you convicted of a crime? A. Yes.

'Q. What was that crime? A. That's what I said--it was bookmaking.

'Q. Prior to that? A. Then I was convicted of another crime but I said it was about twenty-five years ago.

'Q. What was that crime? A. I don't remember it.'

The permitted disclosure thus elicited from the defendant that his previous conviction had been for the crime of bookmaking is characterized by his counsel as erroneous and declared to have been materially prejudicial to the defendant. The basis of the insistence is that the disclosure was intended by the prosecution to reveal the propensity of the defendant to commit the crime of bookmaking rather than to affect the credibility of the defendant's testimony. N.J.S. 2A:81--12, N.J.S.A.

A very illuminating and informational discussion of the distinction between the available use of proof of prior convictions resides in the opinion composed by former Judge Horuvitz in State v. Nagy, 27 N.J.Super. 1, 98 A.2d 613 (App.Div.1953).

In the present case the defendant voluntarily resolved to testify in his own behalf and chose to impart the existence of his prior conviction. He thus subjected himself to cross-examination. Where a defendant either on direct or cross-examination acknowledges a prior conviction of crime, it is not erroneous for the trial court to permit the State by ensuing interrogation to expose such factual components of the judgment of conviction as the production of the record thereof would reveal. State v. Merra, 103 N.J.L. 361, 137 A. 575 (E. & A.1927); State v. Rusnak, 108 N.J.L. 84, 154 A. 754 (E. & A.1931); State v. Metalski, 116 N.J.L. 543, 185 A. 351 (E. & A.1936); State v. Taylor, 5 N.J. 474, 479, 76 A.2d 14 (1950); State v. Nagy, supra.

The purpose for which the prior conviction of the defendant was divulged in the present case is indicated by the related passage of the court's instruction to the jury:

'Upon the subject of credibility of any witness or the defendant as such witness, it is now the law that no person offered as a witness shall be excluded by reason of his having been convicted of a crime, but such conviction of crime may be shown for the purpose of affecting his or her credit as such a witness. Pursuant thereto, the state has shown that the defendant has been convicted of crime. You may, therfore, take that into consideration in determining whether or not you will believe the defendant or what weight or credit you shall in your judgment accord to the testimony of that witness.'

The remaining feature of the trial which counsel for the defendant criticizes is more engrossing. Here again the episode can be recounted with superior distinctness by the reproduction of the pertinent testimony.

The following extract comes from the testimony of Detective Spahr:

'Q. Now, Detective, subsequently, did you have occasion subsequent to the examination in Palka's Tavern, did you have occasion to speak with the defendant Kobylarz? A. I did.

'Q. When and where? A. That afternoon in the Bergen County Prosecutor's Office.

'Q. What, if anything, did the defendant Kobylarz say to you at that time? A. He gave me his name and address.

'Q. Was he confronted with Mr. Bednarski at that time? A. He was.

'Q. And at that time in the presence of Mr. Kobylarz, did Bednarski state this particular operation--the facts concerning the same as testified to here earlier?

'Mr. Selser: I object to it.

'The Court: I will allow it. A. He did, sir.

'Q. Did Mr. Kobylarz either admit or deny at that time--

'Mr. Selser: If the Court please, I object.

'The Court: Objection sustained.

'What did Mr. Kobylarz say?

'The Witness: Mr. Kobylarz refused to give any answer whatsoever, sir.'

The defendant during his cross-examination imparted the rather equivocal explanation:

'Q. Do you remember when you were brought to the Prosecutor's Office? A. Yes, sir.

'Q. When Mr. Bednarski was also in your presence and being interrogated? A. Yes, sir.

'Q. And do you recall being asked at that time concerning this alleged operation? A. No, sir.

'Q. You don't recall being asked? A. No, sir. They didn't ask me nothing. The only one they asked was Bednarski.

'Q. They didn't ask you anything? A. They wanted a statement off me, yes, sir.

'Q. Didn't they ask you whether or not you entered into an agreement with Bednarski? A. No, sir.

'Q. Do you recall Mr. Spahr--will you stand up?

'(Detective Spahr stands in the audience.)

'Q. Did this gentleman, known as Detective Spahr, ask you questions concerning this? A. Someone did, sir, but I don't remember who they were--there were so many in there.

'Q. They did ask you questions, didn't they? A. All they asked me was my name and address and that was all I said.

'Q. Is that all they asked you? A. I don't remember what they asked me, sir.

'They asked you other questions though, didn't they? A. They probably did but I don't remember them.

'Q. During that time, did you state to Detective Spahr that you refused to answer any question? A. That is what they always tell you--

'Q. Did you know what they always do, did you at that time? A. Did I state to them I refuse to answer any questions?

'Q. That's right. A. I don't know. I don't remember. I probably did. I am not sure.'

Whenever during the past century the members of the bench and bar have been concerned in this jurisdiction with the rule of evidence appertaining to tacit admissions in criminal cases, sometimes characterized as the doctrine of assenting silence, they have habitually consulted the decision in Donnelly v. State, 26 N.J.L. 601 (E. & A.1857), wherein the rule is announced:

'When a matter is stated in the hearing of one, which injuriously affects his rights, and he understands it, and assents to it, wholly or in part, by a reply, both are admissible in evidence; 61 N.J.L. 308, 313, 39 A. 651 (Sup.Ct.1898), the party, who is presumed to have acted under the force of truth, and the statement as giving point and meaning to the action. So, also, silence, unless it be accounted for by some of the circumstances which have been specified, or by other sufficient reasons, may be taken as a tacit admission of the fact stated; because a person knowing the truth or falsity of a statement affecting his rights, made by another in his...