State v. Williams, A--659

• Decision Date: 27 November 1951
• Docket Number: No. A--659,A--659
• Citation: 84 A.2d 756,16 N.J.Super. 372
• Parties: STATE v. WILLIAMS. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 372

16 N.J.Super. 372

84 A.2d 756

STATE v. WILLIAMS.

No. A--659.

Superior Court of New Jersey.

Appellate Division.

Argued Nov. 5, 1951.

Decided Nov. 27, 1951.

George K. Meier, Jr., Montclair, argued the cause for the plaintiff-respondent (Richard J. Congleton, Newark, attorney).

Leslie S. Kohn, argued the cause for the defendant-appellant (Maurice H. Pressler, Newark, attorney).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The defendant, Joseph Williams, was tried before the Essex County Court and a jury and convicted on an indictment charging him with having committed an atrocious assault and battery upon one Wayne Richardson, six years of age. The defendant appeals from the ensuing judgment.

On the evening of October 1, 1950, when young Richardson and several children were playing a game of 'hide and seek' in the alley adjacent to defendant's residence, he was struck in the cheek by a fragment of a bullet from a revolver fired by the defendant.

The pertinent testimony reveals that the defendant first told the police that the children of the neighborhood were habitually making noise; that he had thrown a firecracker, referred to as a 'torpedo,' in order to scare them; then, when no particles of a firecracker were found by the police, he admitted that the 'torpedo' story was not true; that he had retired early the prior evening, was awakened by a noise in the driveway, which he thought to be a burglar; that he had $3,400 in cash and several thousand dollars in checks in the house; that six days previous thereto he had been disturbed by a noise and was apprehensive because of rumors of burglaries in the neighborhood, although the most recent burglary he could recall was December, 1949; that when awakened by the noise, he went to the window to check, then got his gun, went out the rear door onto the porch and fired one shot into the yard with the intention of scaring away anyone who might be on his premises; that he then opened his gun, ejected the shell, reloaded it and returned to bed. The police took the gun, fully loaded, into their possession. A neighbor testified for the State that on the preceding day the defendant had fired two shots at some boys, saying 'Them damned bastards! I will kill them and pay for them.' The State adduced other testimony as to the facts and circumstances connected with the shooting.

The defendant's case proceeded upon the premise that his actions were not unreasonable, but justifiably created by fear of burglars and the bad character of the neighborhood; that to constitute atrocious assault and battery, it was necessary for the State to prove that Wayne Richardson suffered injury as a result of an assault and battery committed by the defendant and that the injury was intentional and 'savagely brutal and inhumanly cruel in character,' and it failed to do so.

The defendant argues that the court erroneously permitted the State, on cross-examination, over defendant's objection, to elicit from the defendant's character witnesses an answer to the following question: '* * * if I were to tell you that the defendant had been arrested on August 20, 1948, in Baltimore, Maryland, and charged with felonious entry, which charge was subsequently dismissed by the grand jury, and if I were to tell you that on April 4, 1951, the defendant was arrested and charged with illegal entry into the United States of America and is presently under $1000 bail on that charge, awaiting hearing before the Immigration Commissioner, would those facts which I have just related to you in any way change your opinion that this defendant is a good, quiet, peaceful, law-abiding citizen?'

'The extent of cross-examination as to reports of misdeeds of the person inquired of rests in the discretion of the trial court. The reports and rumors respecting the accused inquired of are those circulating among his neighbors and acquaintances. They must relate to the trait of character involved in the commission of the crime charged, and to acts done before its commission, subject to the qualification that the antecedent time must not be too remote. The truth or falsity of the rumors cannot be established, nor may the details of the transactions be elicited.' 58 Am.Jur., Witnesses, sec. 659, p. 364.

The rule in this State is that the defendant's reputation in the community constitutes reputation and not the witness' personal opinion. State v. Danser, 116 N.J.L. 487, 492, 184 A. 800 (E. & A.1936). In State v. King, 133 N.J.L. 480, at page 482; 44 A.2d 901, at page 902 (Sup.Ct.1945), affirmed 135 N.J.L. 286, 51 A.2d 365 (E. & A.1947), it was held that: 'To attack the credibility of a witness generally, it may not be asked of him whether his opinion would be changed if he had known that the defendant had previously been tried and acquitted of a similar charge as contained in the indictment on which the defendant was then being tried. On the previous indictment defendant stood as though she had never been indicted and a question such as the one propounded ascribes to an indictment a sinister aspect.' 3 Wigmore on Evidence (3rd ed.), sec. 988, p. 619; Bullock v. State, 65 N.J.L. 557, 47 A. 62 (E. & A.1900). Cf. Commonwealth v. Mashie, 155 Pa.Super. 419, 38 A.2d 403 (Pa.Super.1944); Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (Pa.Sup., 1937). In the case of State v. Von Der Linden, 105 N.J.L. 618, 147 A. 636, 637, (E. & A.1929), the court quoted with approval the rule stated in 1 Wigmore on Evidence (2d ed.), sec. 197: '* * * A question, therefore, which does not expressly refer to the witness' hearing of the conduct as rumored, is improper, because it aims apparently at the conduct as a fact showing the defendant's character.'

The defendant here argues--and correctly so--that the vice of the question not only restricted the witnesses' testimony to their personal opinions of the defendant's reputation, rather than his reputation in the neighborhood or community, but also called upon the witness to assume the truth of the two alleged criminal accusations, one prior and the other subsequent to the indictment; and that the form of the question was contrary to the settled rule. But, the State argues, its purpose in propounding the question of the witness was to attack his credibility; that, as the witnesses could have been asked whether they had heard such rumors, the defendant suffered no prejudicial harm. The State relies upon the case of State v. Von Der Linden, supra, to justify the court's ruling. The Von Der Linden case holds that a witness may be asked whether he had knowledge of defendant's Arrest and conviction of various offenses. That was not the question here. The witnesses were asked whether their opinions would be changed if they had known of the arrest and indictment in Baltimore prior to the indictment and arrest subsequent thereto for illegal entry. The Von Der Linden case, supra, holds merely that the witness may be asked if he heard, not for the purpose of refuting testimony of good reputation by specific charges or arrests, but rather to ascertain whether 'one knowing of certain rumors has nevertheless rashly asserted a reputation inconsistent with the rumors.' The State disavows any intent to create in the jurors' minds an impression of the truthfulness of the criminal accusations incorporated in the question. This may well be true, but can one definitely say that such was not the accomplished result. 'But the serious objection to them is that practically the above distinction--between rumors of such conduct, as affecting reputation, and the fact of it as violating the rule against particular facts--cannot be maintained in the mind of the jury. The rumor of misconduct, when admitted, goes far, in spite of all theory and of the judge's charge, towards fixing the misconduct as a fact upon the other person, and thus does three improper things--(1) it violates the fundamental rule of fairness (ante, sec. 979) that prohibits the use of such facts, (2) it gets at them by hearsay only, and not by trustworthy testimony, and (3) it leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue.' 3 Wigmore on Evidence, supra. See also Ippolito v. Turp, 126 N.J.L. 403, 19 A.2d 782 (Sup.Ct.1941), citing with approval, 22 C.J., sec. 579 et seq., p. 481, wherein it is stated: '* * * it is settled by the great weight of authority that evidence of specific acts is not admissible to prove character.' At p. 483, of the same text, sec. 581, it is said: 'A witness as to character may be asked on cross-examination as to the particular charges against or reports concerning the person whose character is under investigation which he has heard, or as to facts otherwise known to him, or as to what he has himself said at a particular time and place as to matters affecting the character of the person about whom inquiry is made, or what the reputation is in connection with certain specified transactions within the reasonable range of the direct examination. But the object of such inquiries is merely to test the accuracy and candor of the witness, and the facts...