Opinion
Argued May 27, 1935 —
Decided October 9, 1935.
On appeal from the Supreme Court, in which Mr. Justice Bodine filed the following opinion:
"The defendant was convicted of perjury. He had given, as the jury found, materially false testimony as a witness in a criminal proceeding instituted against Aaron L. Simon, and others. A young lawyer, he testified that he had left the court room with Simon after the trial of a case in the Passaic Circuit on May 12th, 1933, and had gone directly to his automobile and that Simon had not talked alone with a juror named Michael LaConti and had not checked over the jury list with him. This testimony, which the evidence abundantly showed was false by the oath of more than one witness, was material to establish Simon's position that he was innocent of the charge as made.
"The court charged the first, second and third requests in so far as the same embodied a correct principle of law saying: `May I say to you at this point, that this defendant being charged with crime, like all defendants charged with crime, is presumed to be innocent and that presumption continues until the state establishes his guilt beyond a reasonable doubt.' This language was approved in State v. Burke, 81 N.J.L. 94. The jury could not fail to understand the import of this language in the light of the whole charge. The duty was clearly placed upon the state to establish guilt beyond a reasonable doubt. The court not only informed the jury of the presumption of innocence, but of the duty of the state to establish guilt beyond a reasonable doubt.
"The fifth request was not entirely correct. However, in so far as it embodied a correct principle of law it was charged, the court saying: `So if, after analyzing all of the evidence that has been adduced, you are satisfied beyond a reasonable doubt that this defendant committed perjury, as I have defined perjury, and as it is more fully set forth in the indictment which you will take in the jury room with you for the purpose of perusal, it is your duty to convict him. If you are not so satisfied, it is equally your duty to acquit him.'
"LaConti's testimony as to seeing Simon with Conlon, Decker and Durgett was irrelevant, but harmless even if the four were convicted of the conspiracy offense, because the defendant was not charged with that crime but merely with perjury at that trial.
"There seems to be no special circumstance, if any such circumstance could exist, to preclude the state from asking its witness, LaConti, if he had ever been convicted of crime.
"Testimony that the defendant had been seen talking to Irving Simon before taking the witness stand at the conspiracy trial was a relevant fact. There was no reason to exclude such testimony.
"The court did not improperly check the cross-examination of the witness LaConti. It fully appears that he was a faithless witness and a perjured rascal. Argumentative questions could elicit no more than the proved facts. There was no breach of discretion in controlling a line of cross-examination which could elicit nothing more.
"The indictment was sufficient and not duplicitous. The jurors were properly drawn. State v. Profita, 113 N.J.L. 330 . The special and general panel being exhausted, the sheriff properly summoned talesmen. Section 83, 2 Comp. Stat., p. 1847. Trials must go on or courts must cease to function.
"We find no error in refusing to quash the indictment, or in denying the motions to direct a verdict for the defendant. The charge, under the statute, appears in the indictment and the proofs adduced made the factual questions suitable for the determination of the jury.
"Other matters suggested in the argument need no further discussion.
"The judgment is affirmed, with costs."
For the plaintiff in error, Joseph Grossman and Merritt Lane.
For the defendant in error, James D. Carpenter.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Bodine in the Supreme Court.
For affirmance — THE CHANCELLOR, TRENCHARD, LLOYD, CASE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal — None.