State v. Walter

• Decision Date: 18 July 1936
• Docket Number: No. 5.,5.
• Citation: 186 A. 429
• Parties: STATE v. WALTER et al.
• Court: New Jersey Supreme Court

186 A. 429

STATE

v. WALTER et al.

No. 5.

Supreme Court of New Jersey.

July 18, 1936.

Error to Court of Quarter Sessions, Mercer County.

William P. Walter and William J. Marren were convicted of nonfeasance in office, and they bring error.

Affirmed.

Argued October term, 1936, before BROGAN, C. J., and LLOYD and DONGES, JJ.

Kenneth J. Dawes, of Trenton, and Merritt Lane, of Newark, for plaintiffs in error.

Erwin E. Marshall and Leo J. Rogers, both of Trenton, for defendant in error.

DONGES, Justice.

Plaintiffs in error were convicted at Mercer Quarter Sessions of nonfeasance in office. Walter was chief of police and Marren was sergeant of police of the city of Trenton. They were jointly indicted for nonfeasance in permitting certain disorderly houses and houses where lottery and numbers business was unlawfully carried on to operate. They were also indicted for accepting moneys to permit the operations aforesaid, but the prosecutor elected to stand upon the first count only.

Ninety assignments of error and ninety-three specifications of causes for reversal have been filed. These have been argued under ten heads.

The first point argued is that the court erred in declining to arrest the judgment, because the indictment was defective in that, in the first count, it charged each defendant with a separate and distinct offense, and also erred in declining to grant a motion to compel the state to elect against which defendant it would proceed.

This was recently decided adversely to the contention of plaintiffs in error in State v. Preiskel et al, 180 A. 776, 13 N.J.Misc. 736, and, as stated in the brief of plaintiffs in error, that case is controlling here.

Under point II complaint is made of certain questions asked the defendant Walter on cross-examination as to whether or not he had on some occasion refused to permit the assistant prosecutor to see certain records under his control at police headquarters, and questions asked the director of public safety and a clerk at police headquarters concerning the attempt by the prosecutor to get access to the records. It does not appear how the defendants were harmed by these questions. They had to do with a collateral matter that crept into the case, but we fail to see how they could influence the jury in reaching a conclusion on the guilt of the defendants of the charge laid in the indictment. Furthermore, it does not appear that the answers to the questions brought out anything injurious to defendants. Walter's testimony was to the effect that he had refused the assistant prosecutor access to the records until he consulted his superior, and that thereafter he disclosed some and refused others, in accordance with the instructions received from the director, who testified to the same effect. We see no harmful error in this.

Point II-A is directed to certain questions asked the defense witness Sergeant Bentley concerning statements he is alleged to have made to the assistant prosecutor. The line of examination was permitted for the purpose of testing the witness' credibility. Most of the questions were answered before any objection was made, and we can see no prejudice to the defendants in view of the answers, which were "No" or "I can't remember" in most cases.

Point II-B deals with testimony of the witness William Murphy, on rebuttal, with regard to an incident when the defendant Walter was present at a saloon conducted by the witness Harry Rednor. This was competent in view of Walter's denial that he was acquainted-with Rednor.

Point II-C is directed to questions asked the witness George J. Brunn concerning testimony he gave in the grand jury room which was at variance with his direct examination at the trial, and were proper questions to test the credibility of the witness. State v. Silverman, 100 N.J.Law, 249, 126 A. 618; State v. Bovino, 89 N.J.Law 586, 99 A. 313.

Point III deals with certain testimony of witness for the state.

A. The witness Angel Pelletteri was asked, "At the beginning of the syndicate who handled the money and paid the expenses?" This witness had testified that he, one Tomes and Harry Rednor, the principal state witness, were associated in the numbers business. Rednor had testified that for a time he handled the money and paid money weekly to the defendants for protection. The answer to the question ohjected to was that Tomes had handled the money at the beginning of the syndicate. It is difficult to see in what way this question and answer were harmful to the defendants. The trial judge had already indicated that he would not permit testimony of actual transactions of the syndicate in the absence of the defendants, but testimony from this witness of the general method of operation would seem to be proper in corroboration of Rednor's testimony. At any rate, there was no harm to the defendant in this question.

B. That it was error to permit the following question to the witness Oscar Ungaro; "Did you shortly before the time your place was raided and you were arrested for numbers, have any conversation with Angel or Tomes or anyone connected with the syndicate in reference to your taking a 'knock-off' for them, or a set-up?"

C. That it was error to refuse to strike the testimony of this witness.

Ungaro was permitted to testify that through an arrangement with the members of the so-called numbers writing syndicate he stationed himself in his place of business with fictitious numbers slips on his person and submitted to arrest at the hands of a group of police led by the defendant Sergeant Marren. This evidence...