concluding that no error occurred when trial court permitted the jury to take indictment to the jury room notwithstanding that judgment of acquittal had been entered on the second count because trial court instructed the jury that acquittal had been entered on that count and because the jury was instructed to ignore that count and consider only the first count of the indictment
How later courts described this case
- concluding that no error occurred when trial court permitted the jury to take indictment to the jury room notwithstanding that judgment of acquittal had been entered on the second count because trial court instructed the jury that acquittal had been entered on that count and because the jury was instructed to ignore that count and consider only the first count of the indictment
- so-called “accomplice rule” calls for specific cautionary jury instruction “that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding ... which might lead to influencing [his or her] testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arise”
- pre-Code case recognizing sanitary inspector's duty not to request or accept any gift "under an agreement and understanding that he would act in any particular manner with reference to the affairs of his employer," breach of which constituted misconduct in office
- accomplice witnesses were “as much guilty of [the offenses] as the defendant under their own testimony”; an accomplice is one “who has committed the crime with the person charged”
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by State v. Savoie, 67 N.J. 439 (1975)
34 N.J. 35, 54 (1961), overruled in part on other grounds by State v. Savoie, 67 N.J. 439
The opinion
Weintbatjb, C. J.
(concurring). I join in the opinion of Mr. Justice Hall except with respect to its treatment of the trial court’s charge relating to the testimony of an “accomplice.”
The charge concerned the testimony of the witnesses Ealph and Josephine Mastrangelo. Defendant himself submitted seven requests on the subject. All expressed the theme that the testimony of the witnesses, although legally sufficient, should be scrutinized because of the hope of reward they might have with respect to their own criminal involvement. The first request read in part:
“The testimony in the main in this case comes from the lips of Ralph and Josephine Mastrangelo. They have admitted their part in this alleged crime, and as such, they are what we call, in law, accomplices. The term accomplice takes in all the particeps criminis. An accomplice is a guilty participant with others, in the same crime, either in the same or a different degree * *
The trial court acceded to defendant’s requests but said in lieu of the portion quoted above:
“The two Mastrangelos, Ralph and Josephine Mastrangelo, who testified for the State in this case, are classified by the Court and I charge you that they are what we call accomplices in this case, in this offense charged in this indictment. They admittedly gave money to the defendant Begyn to serve their own interest under their garbage contract and they are as much guilty of misconduct in office as the defendant, under their oion testimony.” (Emphasis added)
Defendant complains of the language I have italicized.
Insofar as the court said defendant was guilty of misconduct in office if the Mastrangelos were believed, the comment was perfectly proper.
*58 Defendant seems to complain it was error to say that upon their own testimony the Mastrangelos were guilty of misconduct in office. Whether as aiders and abettors they could be charged with that particular crime, is immaterial. The misnomer, if such it was, could not possibly prejudice defendant.
Defendant’s real grievance, as I see it, is that the instruction was tantamount to a charge that he was guilty. There is substance in this complaint, but the grievance was of defendant’s own making. He asked for the “accomplice” charge in circumstances in which it was inapt. The reason is that since the witnesses could not be guilty unless defendant too was guilty of the offense for which he was on trial, an instruction characterizing the witnesses as guilty of crime had to carry the implication that by the same token defendant too was guilty. To state it in other terms, defendant’s requests to charge involved a paradox, to wit, that the jury was asked to view cautiously the testimony of the witnesses upon a premise which simultaneously imported defendant’s guilt, and this because the witnesses could not be guilty unless defendant too was guilty. It would be quite a feat for a jury both (1) to discredit the witnesses because they believed their incriminating testimony and (2) thereupon to acquit the defendant by disbelieving the very testimony they had already accepted as the truth. That the requests to charge were inappropriate becomes more evident when one considers the policy behind and the role accorded to the so-called “accomplice” charge.
As Mr. Justice Hall points out, the testimony of an “accomplice” suffices in our State to support a conviction even though it is uncorroborated. In jurisdictions in which corroboration is required, the classic charge will carry the incongruity and possible hurt to which I have referred if the facts are such that the defendant must be guilty if the witness is guilty, see Annotation 19 A. L. B. 2d 1352, 1356 (1951), but still in such circumstances the defendant there gains a compensating advantage in that the jury is also *59 directed to acquit even if the witness is believed, unless corroboration is also found. But where, as in our State, corroboration is not required, the “accomplice” charge in that factual pattern carries the possibility of harm unameliorated by a further instruction to acquit if corroboration is not found. Hence in a jurisdiction in which corroboration is not required it is a mistake to demand the “accomplice” instruction routinely and without weighing the role it will play in a given setting.
The thesis of the “accomplice” charge is that, being already enmeshed, the witness, in the hope of leniency, may falsely involve another. Defendant’s requested instructions were couched in those terms. As stated in 7 Wigmore, Evidence (3d ed. 1940), § 2057, p. 322:
“The reasons which have led to this distrust of an accomplice’s testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him provided he helps them to secure the conviction of his partner in crime: * * *. It is true that this promise of immunity or leniency is usually denied, and may not exist; but its existence is always suspected. The essential element, however, it must be remembered, is this supposed promise or expectation of conditional clemency. If that is lacking, the whole basis of distrust fails. We have passed beyond the stage of thought in which his commission of crime, self-confessed, is deemed to render him radically a liar [ante, § 426). The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule.”
The stated thesis of the rule quite obviously can apply ■ only where the witness’s guilt is consistent with defendant’s innocence, for if upon the truth neither the witness nor the defendant is guilty of an offense, there can hardly be a motive to curry favor by false testimony. To the contrary, if loth must be guilty or loth innocent, the witness’s testimony bears the badge of verity for it is against his own interests to give the damaging evidence. Hence a cautionary *60 instruction based upon the hope of favor makes sense only if the witness is guilty of some crime (whether or not the one described in the indictment) in circumstances in which the defendant may nonetheless be innocent. Such was the situation, for example, in State v. Spruill, 16 N. J. 73 (1954). As I have said, it is only in a jurisdiction in which corroboration is required, that a defendant can benefit from the cautionary instruction if the facts are such that the witness cannot be guilty unless the defendant too is guilty; and there the defendant does not benefit from a cautionary instruction based upon a hope of reward, but rather from the distinct instruction that even though the witness is credited, nonetheless there cannot be a conviction unless corroboration is found.
An instruction in the nature of the “accomplice” charge would here aid defendant only if a jury could find that the witness, although in truth innocent of crime, erroneously thought he was guilty and hence sought favor by telling a false story involving both the witness and defendant. There is no evidence in the case to support that theme, and the requests to charge were not framed upon it. Absent such circumstances, a cautionary charge could be suggested only upon the different thesis that a witness’s confession of crime should affect credibility to the same extent as would a conviction. The difficulty again is that since the discrediting offense could not have been committed by the witness unless the defendant too was guilty of the crime with which he is charged, an instruction in that vein impales the defendant upon the same lance. Cf. State v. Costa, 11 N. J. 239, 256 (1952). Wigmore seems to reject this possible basis for a cautionary charge for other reasons in the closing portion of the quotation above. I need not express a view since defendant did not seek a charge upon that ground.
For these reasons, I believe the trial court merely complied with defendant’s own requests. Frankly, I am at a loss to see how the trial court could so phrase an “aecom *61 plice” charge as to obviate the possible harm of which defendant complains. Perhaps, after further reflection, defendant will not renew his request at the retrial.
Weintraub, C. J., concurring in result.
For affirmance—Chief Justice Weintraub, and Justices Jacobs, Erancis, Proctor, Hall and Schettino—6.
For reversal—None.