(dissenting). A physician was here convicted of perjury with respect to “medical opinions” given at a trial. There were eight counts. The trial court acquitted on one and convicted on the remaining seven. The majority opinion concludes defendant was innocent of four additional counts, but affirms the conviction on the remaining three.
There was another indictment for false swearing which was tried with the perjury charge. The majority opinion reads:
“The record indicates the State moved for sentence only on the perjury indictment and that no further action was taken upon the false swearing indictment.”
As I read the record, there was no verdict on the false swearing indictment. Rather, the trial court deemed its *43finding on the perjury charge to foreclose a conviction for false swearing based upon the same testimony. Hence we have before us only the conviction for perjury.
I do not quarrel with the abstract proposition that an opinion, as distinguished from a statement of fact, may be perjurious. But we should recognize the inherent dangers of injustice when a medical opinion is thus assailed. It is commonplace for experts to differ in equal numbers. It would be absurd to suggest that the testimony of any two will suffice to convict another who differs with them. The point is that the issue is not whether a defendant’s opinion is false, but whether his belief in his opinion is false, and it is the falsity of his belief in that opinion which must be demonstrated. Proof that others hold a contrary opinion evidences disagreement and nothing more.
It may indeed be difficult to prove such a case. But that is exactly as it should be. The badge of criminality should be richly deserved. We do not sacrifice individuals for some prophylactic benefit to society. On the contrary, we surround men accused of crime with assurances against unfairness because we conceive that justice to the individual is the only defensible course.
This ease is made still more unusual by the circumstance that the testimony charged to be false was given on cross-examination and on redirect. I agree that a departure from or an addition to direct testimony may be perjurious. But it would seem elementary that in such circumstances a charge of perjury should not be sustained unless a corrupt motive is evident. Cross-examination is rightly extolled as “the greatest legal engine ever invented for the discovery of truth,” 5 Wigmore, Evidence (3d ed. 1940), § 1367, p. 29. Its purpose is to achieve departures from direct, both departures which are literal and departures which arise in ultimate effect from the development of additional facts or views. I am sure no one would subscribe to a caveat to every witness that if he deviates from his direct testimony he will .thereby sign his own commitment.
*44It was originally held in the ease of perjury that falsity had to be shown by direct and positive testimony of two witnesses. Later the rule was relaxed so that such testimony of one witness plus strong corroboration as to falsity would suffice. The weight of authority denies the efficacy of circumstantial evidence alone and the minority who differ are nonetheless more exacting in the measure of proof than in the case of other crimes. 41 Am. Jur., Perjury, § 65, p. 35; Annotations, 15 A. L. R. 634 (1921); 27 A. L. R. 857 (1923); 42 A. L. R. 1063 (1926); 111 A. L. R. 825 (1937). The wisdom of the basic rule has been questioned. But it rests not upon some ancient quirk but rather upon the public interest in advancing the investigation of truth, an interest which is furthered by protecting witnesses against retaliatory charges spawned in disappointment in the outcome of a trial. This court recently reaffirmed the rule that two witnesses or one plus strong corroboration are necessary; State v. Caporale, 16 N. J. 373, 376 (1954), wherein it quoted with approval the following from State v. Bulach, 10 N. J. Super. 107 (App. Div. 1950) :
“* * * In this State we have adopted the test that the oath of a single witness must be supported by ‘proof of strong corroborating circumstances of such character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence,’ ‘something more than the mere weight of evidence in favor of the state.’ * * *”
Nor may falsity be established merely by proving prior inconsistent statements. 41 Am. Jur., Perjury, § 66, p. 36; 2 Wharton, Criminal Law (12th ed. 1932), § 1583, p. 1837. Bather, the State must charge and prove which of the two statements is perjurious.
Perjury is a high misdemeanor. We have a lesser crime, false swearing, legislatively devised to avoid the rigorous requirements which attend the charge of perjury. State v. Kowalczyk, 3 N. J. 51 (1949). Thus, in charging false swearing contradictory statements under oath may be alleged without specifying which is false and proof of the statements “is prima facie evidence that one or the other is false.” *45N. J. S. 2A :131-5. The rule requiring two witnesses or one together with corroboration is expressly made inapplicable, N. J. S. 2A :131-6. And whereas perjury, as statutorily defined, requires proof that the defendant "willfully and corruptly” committed the perjury, N. J. S. 2A :131-1, the false swearing statute requires only a showing that the defendant “willfully” swore falsely, N. J. S. 2A :131-4, “willful” being defined “to mean intentional and knowing the same to be false.” N. J. S. 2A :131-7. These statutory provisions succinctly contrast perjury with false swearing. The conviction here is for perjury.
A medical opinion is a conclusion from facts. If a physician swears to the truth of those facts, proof by qualified observers that the facts were otherwise may well suffice to sustain perjury charged with respect to the testimony as to such facts. Where the medical opinion is charged to be perjurious, conflicting medical opinions of others may prove the medical opinion to be erroneous, but cannot prove that the defendant’s belief in his opinion was false; at least I cannot conceive hypothetically a case in which they could. Whether perjury charged to reside in an opinion may be made out by proving the falsity of the facts which the physician swore he observed and relied upon, is difficult to consider in a vacuum. The prudent course there would be to charge perjury as to the factual observations rather than in the opinion.
I.
B. B. 3:7-l(e) provides:
“In a case tried without a jury the court shall make a general finding and shall, in addition, on request, find the facts specially.”
The trial court announced its general finding and some six weeks later filed its written special findings of fact. In passing, note should be made of this sequence of events. I appreciate the rule does not require the special findings to precede the general finding of guilt, but ordinarily, and *46especially in a matter as complex as this one, such should be the order, and for the obvious reason that the fact-finding process may well command an acquittal notwithstanding an initial gross impression of guilt. Cf. New Jersey Bell Telephone Co. v. Communications Workers of America, 5 N. J. 354, 380 (1950).
The special findings recite at length the evidence pro and con without any findings of fact therein and then conclude with this single “finding”:
“I determine that there wag not any basis in fact for the medical opinions expressed by Dr. Sullivan while testifying at the second murder trial to the observations he made of the murder defendants in the First Precinct Police Station on February 10 and 12, and the said opinions expressed by the defendant were false and at the time he made them he knew them to be false.” (Italics added.)
The majority deem this finding to comply with the rule. In my view, it discloses no special findings of fact whatever. It adds nothing to the general finding of guilt, except to clothe it with uncertainty as to precisely what was found to have been perjurious.
Special findings were uniquely necessary in this case. The indictment charged various statements to be false, some of which were statements as to facts observed, others as to opinions or diagnoses without disclosure of all of the facts upon which the opinion or diagnosis was based, and still others consisted of answers to wholly hypothetical questions. The majority opinion classifies observations, such as to nervousness, as matters of fact rather than of medical opinion, and with this I agree. The trial court did not find that any of the factual observations to which Dr. Sullivan testified were false; rather it found falsity only with respect to “medical opinions,” and did so by concluding that there “was not any basis in fact” (we are not told what the facts were found to be) for the opinions.
The trial court not having pointed to the “medical opinions” he found to be false, nor the facts from which he so concluded, we cannot turn to the record to see if his findings are *47supported by the required evidence. If I correctly read the majority opinion, falsity seems to have been found with respect to Dr. Sullivan’s factual observations and upon that premise in his medical opinions as well. Thus, for all we know, the majority result may well rest upon original findings diametric to those of the trial court.
Moreover the finding does not include a finding of the mens rea required by the statute. As already pointed out, N. J. S. 2A :131-1, reads:
“A person who willfully and corruptly commits perjury * * * is guilty of a high misdemeanor.” (Italics added.)
The trial court found that Dr. Sullivan testified falsely with knowledge of falsity. But it did not find that Dr. Sullivan did so intentionally, and more importantly it did not find that he did so “corruptly.” If the case had been tried before a jury and the jury had been instructed that it need find only falsity and knowledge of falsity, we would have to reverse the conviction. Morissette v. United States, 342 U. S. 246, 274, 72 S. Ct. 240, 96 L. Ed. 288 (1952). Dealing as we are with an alleged conflict between testimony given on direct and testimony on cross-examination, the element of corrupt purpose is of unusual significance.
The rule requiring special findings has an obvious purpose, to wit, to enable the appellate court to determine (a) whether the evidence will support the facts as found, and (b) whether the facts as found will support the conviction. It is impossible so to review this case, and the majority make no pretense that this is the review they give. On the contrary, the majority launch into a de novo trial of a charge of high misdemeanor and make their own findings with complete disregard of what the trier of facts found or did not find. Hot only may the majority have found to be false what the trial court found to be true, but it is indisputable that the majority found Dr. Sullivan testified corruptly while the trial judge either found that he did not or failed to make any finding whatever.
In State S. Catalano, 30 N. J. Super. 343 (App. Div. 1954), a conviction for a disorderly persons offense was *48reversed where the findings failed to include an essential element of the offense, to wit, the existence of an unlawful purpose. The Appellate Division expressed doubt as to its power to make new findings, but concluded that in any event it ought not to do so in that case.
Whatever the ambit of the provision in R. R. 1:5 — 4, as amended since Catalano, that “new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses,” surely the rule was not intended to nullify the mandate of R. R. 3 :7-1 (c). Rule 3 :7-l (c) was borrowed from Federal Rule of Criminal Procedure 23(c), which in turn was taken from the Connecticut practice. The purpose of special findings is to increase the protection to an accused by affording a review unavailable where trial is by jury. Hence the trial court’s “finding should contain the subordinate facts found and then the conclusions reached from those subordinate facts.” State v. Frost, 105 Conn. 326, 135 A. 446, 449 (Sup. Ct. Err. 1926), cited in the Tentative Draft of Rules of New Jersey (1948), p. 55.
In Borough of Park Ridge v. Salimone, 21 N. J. 28, at page 39 (1956), a civil proceeding, this court said:
“* * * It is to be noted that the Commission did not make any specific findings with respect to the charges, but contented itself with merely making a general finding that guilt had not been established by the greater weight of the evidence. For this it must be criticized. Abbott’s Dairies, Inc., v. Armstrong, 14 N. J. 319 (1954); Household Finance Corporation v. Gaffney, 11 N. J. 576 (1953); In re Central R. Co. of New Jersey, 29 N. J. Super. 32 (App. Div. 1953); Family Finance Corporation v. Gough, 10 N. J. Super. 13 (App. Div. 1950).
‘These findings are of the utmost importance not only in insuring a responsible and just determination by the Director, but also in affording a proper basis for effective judicial review.’ Abbott’s Dairies, Inc., v. Armstrong, supra, 14 N. J., at page 332.
If the Commission had taken the time to analyze the testimony in this case it could not possibly have reached the superficial and erroneous conclusion to reverse the borough council. * * *”
In Van Sweringen v. Van Sweringen, 22 N. J. 440 (1956), a conviction for criminal contempt was reversed because the *49matter was tried before the offended judge. This court did not undertake itself to try the cause on the dry record. Rather it said (22 N. J., at page 449) :
“In passing, it is to be observed that we have not considered or resolved the factual issues. It is particularly desirable in the circumstances of this case that a prejudgment of fact be made by a trial judge who has observed all the witnesses because credibility plays such a large role. The opinion of the Appellate Division lends the impression that the court was reluctant to undertake a general evaluation of the evidence taken at the trial level and as affected by the further original evidence which it ordered by deposition. This, undoubtedly, in view of the important role of the trial court in observing the witnesses at first-hand, a factor recognized in the philosophy of the court rules relating to the factual review where the findings are made by a judge rather than a jury. R. R. 1:5-4 (6). * * *”
See also New Jersey Bell Telephone Co. v. Communications Workers of America, supra (5 N. J. 354, 374 to 379).
A potent consideration in Dr. Sullivan’s decision to waive a jury probably was the involved nature of the charge and the consequent possibility of a conviction by a broad brush. He did not bargain for what he is now receiving. He never agreed that an appellate court sit de novo and decide his guilt of a high misdemeanor in a process which is tantamount to trial by deposition without opportunity to observe the witnesses and in which a conviction may be returned, as it is here, by triers of the facts who are in disagreement as to the facts.
It seems to me that fundamental fairness requires a reversal for this reason alone.
II.
I cannot start with the conclusions of the majority that “In general, Sullivan’s statements at the second trial varied violently from those he delivered at the first,” and that “Then, in' effect, he stated all of the murder defendants, for one reason or another, were totally incapable of understanding the serious consequences of their confessional act, *50and that their physical and mental conditions were such as to negative the voluntariness of their statements.” The majority say “in effect” that was Dr. Sullivan’s testimony. I see no room in a perjury case to talk vaguely about atmospheric “effects.” Perjury must be found in testimony given and by specific reference to it.
It is necessary to set forth some of the background.
On February 10, 1948 Dr. Sullivan was requested by the prosecutor to appear at police headquarters, without any intimation as to the purpose. When he arrived he was asked to witness the execution of statements by five of the six murder defendants, and two days later was present when the sixth defendant signed his. This was a new experience for Dr. Sullivan. Dr. Corio was similarly called without prior explanation and he, too, found himself in a new situation. Neither doctor came prepared to make a medical examination. Dr. Sullivan apparently had no equipment at all. Dr. Corio had a stethoscope. Neither had a blood pressure gauge.
Dr. Corio testified that he thought he was (a) to examine for evidence of physical brutality, and (b) to see that no physical force was used at the time the confessions were signed. His examination was limited accordingly and he made no notes whatever. This was in February 1948, eight years before the trial of the charges against Dr. Sullivan. In short, Dr. Corio thought his role was that of a layman. The doctors made separate physical examinations and Dr. Corio testified he did not hear much of Dr. Sullivan’s interrogation of the men. Nor were the police officers in a position to hear all of Dr. Sullivan’s interrogation of the men during his physical examination of them. The doctors compared their findings, but it is plain to me that they talked only of physical rather than emotional conditions. Later Dr. Sullivan gave a sworn statement to the police on oral interrogation. This is the statement which looms so large in the majority opinion. Dr. Sullivan answered all questions put to him. They related solely to the absence of signs of physical injury and to the disavowal *51by the aceuseds of force or deprivation as to physical wants. No questions were addressed to the emotional picture. The mere failure of Dr. Sullivan to volunteer information not embraced in the questions put cannot be elevated to the status of testimony affirmatively inconsistent with testimony later given.
At the first trial Dr. Sullivan was used by the State as a pure fact witness with no reference to professional skill. On cross-examination the approach was essentially the same, except for the development hypothetically of some testimony given by Dr. Sullivan on direct that he asked Cooper if he used “reefers” because he observed signs suggesting that Cooper might have, and the total effect of that examination was that a drug could have produced what Dr. Sullivan observed. The truthfulness of that testimony cannot be challenged, and the majority agree.
In reversing the convictions at the first trial, this court adverted to the subject of psychological coercion, which had been projected into the forefront by opinions of the United States Supreme Court which came down just prior to the opinion of this court. On the second trial the State again offered Dr. Sullivan as a fact witness, no different from a lay observer. But the defense then branched into a new thesis, psychological compulsion. The majority opinion states that Dr. Sullivan was offered refuge by the trial judge who suggested he might refuse to answer questions calling for opinions. I read the record precisely the other way.
The cross-examination of Dr. Sullivan was fantastic. On direct he repeated the testimony as to Cooper which suggested the possibility that marijuana had been used. Since Dr. Sullivan was a physician, the trial judge properly permitted some cross-examination along the line whether what he observed was consistent with the use of the narcotic, and of course the answer was in the affirmative. Then followed an amazing performance, wholly beyond the direct examination. Dr. Sullivan was queried hypothetically as to the effects of various drugs, etc., and what could con*52ceiyably cause this, that, or the other, without any foundation in the direct examination. That course having been permitted by the trial judge over the State’s objection, defense attorneys worked in relays upon the witness, traversing the course time and again, and propounding one hypothesis upon another. A direct examination of 15 printed pages was followed by 298 printed pages of further interrogation.
Dr. Sullivan dutifully answered myriads of questions as to whether A could cause B, giving what seems to have been the only conceivable answer, to wit, that A could cause B. Although, of course, Dr. Sullivan did not author the questions, and could answer only in terms of possibilities any question which was so framed, yet the trial court chided him because he did not answer in terms of probabilities. The prosecutor on redirect appeared also to seek answers in terms of probabilities when manifestly the witness could not answer in those terms without assuming facts not within his personal knowledge. Thus when the prosecutor returned to the subject of Cooper and marijuana, and Dr. Sullivan repeated that what he observed could have been caused by the narcotic but that he could not say that it was, the trial court said to the witness, “you are professionally trained,” “You are a trained man,” and for the third time admonished him:
“Wait a minute. Let me finish. What was the condition that you found Ralph Cooper, or any one of these defendants in when you examined them? I don’t want possibilities, because anything relating to human affairs may be possible. I want reasonable probabilities, and you ought to be able to tell me what you found.”
The prosecutor pressed the inquiry for some 25 additional pages and finally obtained the answer he here charged to be perjurious, “I say it could have been — it was caused by marijuana.”
In short, although offered as a pure fact witness, Dr. Sullivan was converted into an expert and asked to express opinions which manifestly could not rest solely upon his *53own factual observations. He thus was called upon either to guess or to use factual information acquired from other sources. Hence, when asked at the second trial to explain why he had not testified to certain views at the first trial, he answered that no one had put the questions, and that whereas he then testified to factual observations, he was now asked to give opinions and diagnoses.
Despite the fact that the trial court found falsity only in medical opinions, the State argues before us that there was falsity as to factual observations. The claim boils down to this: At the first trial Dr. Sullivan said Eorrest was “moderately excited” (he said he used it as a medical term, between “slightly excited” and “maniacally excited,” and hence without reference to such nervousness or excitement as one would ordinarily accept as normal under the circumstances), and in response to whether he had told counsel at a pretrial interview that Thorpe was nervous, said he recalled making that statement only about Eorrest. He said English talked “very freely,” but he would not say he was surprised at how freely he talked. As to MacKenzie, he said “normal is relative. I’d say as far as my observation of normality he was normal” and “I can’t recall him being nervous.”
It may be said that in such matters Dr. Sullivan’s testimony departed on cross-examination at the second trial. But if so, which testimony was true? And if the majority find perjury therein (and I am not sure they do), then the error in refusing to admit the testimony of the unavailable witnesses, Manning and Police Captain Delate, is manifestly prejudicial. Eor example, Manning testified that he observed all of the men to be “highly nervous.”
Apart from the fact that Dr. Sullivan’s testimony at the first trial was brief and he used “moderately excited” as a recognizable medical state rather than as a lay expression, a number of circumstances will explain a departure, if there was one, in terms other than perjury. We may fairly assume that the men signing their death warrants were not as placid as guests at a tea party. It would be remarkable *54if there was no sway from “normal” emotional balance. Moreover, Dr. Sullivan had not known these men prior to February 1948, but thereafter treated some of them in his capacity of jail physician and thus could contrast what he observed in February 1948 with their relatively normal demeanor thereafter. Still further, Dr. Sullivan may well have reappraised his initial observations in the light of facts later revealed to him. For example, he had not been informed on February 10, 1948 or prior to the first trial of these undisputed facts: that a few hours before Forrest signed his confession he had a severe emotional episode which included hallucinations; that Dr. Moore was summoned and left sodium amytol for the prisoner with advice to Detective Naples that it would influence Forrest’s thinking for three to six hours; that nonetheless the confession was started 15 minutes thereafter. He later learned of the claim of MacKenzie that shortly before the confession he smoked cigarettes received from a turnkey, had a lapse of consciousness, and recalled nothing until two days later, when, it seems undisputed, he became so violent that he was placed in a padded cell. To this Dr. Sullivan could add a strange and undisputed performance he had witnessed on February 10, 1948, when Thorpe denied his guilt, and yet after cautionary words from Dr. Sullivan and a firm statement by the prosecutor that there were no promises, he nonetheless signed the confession, saying he would be out in a few days. Wilson had vigorously denied complicity and signed a statement to that effect, despite the accusations of the other prisoners. In the light of these circumstances and the flurry of charges which followed the first trial, it would not be strange for Dr. Sullivan to canvass his recollection and give significance to what had not initially seemed to be of moment.
At any rate, since the falsity was found to reside in medical opinions, I will turn to them.
I gather the heart of the majority finding with respect to the testimony concerning English related to Dr. Sullivan’s opinion that English had a psychoneurosis.
*55Both Dr. Sullivan and Dr. Corio found that English suffered from a serious heart condition, which in fact resulted in several attacks during the trials and his death after the second trial. On cross in the second trial, defense counsel developed the theme that one who knew he suffered from so severe a heart condition could yield to persistent pressure for fear of a fatal attack, a thesis which, as far as the record goes, must be accepted as tenable. Ultimately Dr. Sullivan gave his opinion that English had a psychoneurosis.
Now, who says Dr. Sullivan’s opinion was falsely held by him or, for that matter, that English was not psychoneurotie ? He had never testified otherwise and no one so much as offered a contrary opinion. Dr. Corio’s testimony is not all enlightening. He was interested in bumps and bruises and nothing else. He had made no notes. Confronted with prior testimony, he repeatedly accepted it because it was in the record. He protested understandably, “Counsellor, this is eight years ago.” He disclaimed knowledge in the field of psychiatry and could not name a single treatise in the field. He acknowledged he had not heard all of Dr. Sullivan’s interrogation of the men and, as pointed out above, the police officers heard even less, if they heard any of it. Dr. Corio conceded that a psyehoneurosis could accompany English’s heart condition. He later added (with reference to his own observations of Mackenzie) :
“I think Doctor Sullivan will agree with me that the most individualistic person in the world is an M.D. He doesn’t like to depend on another doctor for his opinion or ideas.
# # # * * # # *
Q. By that you mean that— A. We are trained that way.
Q. You are trained that way, and by that you mean that one doctor will see one thing in a patient and you see— A. Yes, sir.
Q. (continuing) — or another doctor will see something entirely different in a patient? A. That is right.”
Thus there was utterly no proof of the falsity of Dr. Sullivan’s testimony. And to demonstrate the danger of *56a judicial conclusion from the record before us that (a) English did not have a psychoneurosis and (b) Dr. Sullivan did not truthfully hold that opinion, I will go beyond the record before us and refer to expert testimony in the second murder trial.
The defense there produced a prominent psychiatrist, Dr. Erederic Wertham, who on the basis of a hypothetical question expressed the opinion that English did not sign the confession of his own free will and did not understand the consequences of signing it. I might add that Police Lieutenant Dawson (not produced by the State at the present trial) testified that English gave three different stories which he rejected as “fantastic”; that at first English was very cooperative and did not seem nervous, but “as the talking progressed and he gave us the three stories he became a little emotional and began to sweat.” The State countered with a noted man in the field, Dr. James B. Spradley, who thought English to be mentally competent. But as to whether English was psyehoneurotic, the State’s own expert, after explaining that psychoneurosis is a big word which includes “those little peculiarities which all of us display from time to time,” testified,
“Yes, I think the man is psyehoneurotic.”
“Q. Then, in other words, besides the heart trouble he had a psychoneurosis, is that right? A. I think he had a psychoneurosis. That is, he was showing those symptoms of fear and nervousness and so on, which come under the general classification of psychoneurosis, so that to that extent I think the Doctor’s labeling of this man as psyehoneurotic reaction was all right.”
As to the testimony relating to MacKenzie, I pointed out above the paucity of the examination of Dr. Sullivan at the first trial. On cross-examination in the second trial Dr. Sullivan was led to say that he “might have been nervous. I don’t recall stating that but— Q. Was he nervous? A. Yes, I would say he was nervous.” Hypothetically it was developed that a drug could have caused what he observed. That was as far as the cross-examination went. It will be recalled that the court later admonished *57Dr. Sullivan to speak in terms of probabilities and the testimony as to Cooper recited above was given. It was immediately thereafter that the following occurred:
“By the Court:
Q. Now, Doctor, you examined MacKenzie, didn’t you? A. Yes, your Honor.
Q. Can you or can you not tell this Court from that examination as to whether or not he was under the influence of any drug of any form? A. Your Honor, I would say from the symptoms manifested, being relatively nervous, a drug could have been used.
By Mr. Volpe [the prosecutor] :
Q. (Continuing) Is that speculative or conjectural? A. That is my observation that from the condition at the time that I examined him, being coherent, that is answering and orientated to where he was in answering the questions, yet being highly nervous, it seems that he was being controlled. I mean, that is — ”
At that point the prosecutor interrupted and switched to Eorrest and Cooper and 24 pages later returned to MacKenzie (the indictment reads as though the following quotation followed immediately after the portion quoted above) :
“Q. Now, as to Jack MacKenzie, or John MacKenzie, Doctor, would you repeat what his appearance seemed to you at the time that you saw him on the night of the 12th? A. If I recall, I stated that Jack MacKenzie appeared to be relatively calm, but nervous, that he appeared to be in a controlled state, as if having had a drug. That is to the best of my recollection, and his physical examination was essentially negative other than that.
Q. Did you ask Jack MacKenzie whether he had taken any drugs? A. I don’t recall.
Q. And if no drugs had been used, what would you say could have brought about that appearance?
A. I don’t know of any other situation that might put a person in a controlled state other than the hypnosis.
The Court: What does that mean?
The Witness: There are certain procedures used by psychiatrists or psychologists that can repeat certain situations so long or so often until the person will become relatively dazed and will be led along a certain line of thought as long as that person pushes those questions.”
The matter was not further explored. I gather this testimony was given in the absence of the jury. In the presence *58of the jury Dr. Sullivan was examined on direct only as to English and Forrest. During the cross-examination the prosecutor pleaded “surprise” and sought to neutralize the testimony. The examination and argument went on for some 100 pages to no discernible conclusion and without further reference to Mackenzie.
I do not know whether in the present case the trial court or the majority conceived the statement “he appeared to be in a controlled state” to be a factual observation or a medical opinion. To me it is a medical opinion which would have to be based upon some facts, and for that reason it is unfortunate that he was not questioned further as to the precise underlying factual detail. If the quoted statement should be deemed to be a factual observation, then surely it is a matter calling for a skilled observer with equal opportunity to observe.
The majority say:
“We can find nothing in the record to warrant this testimony, and we must conclude that Sullivan lied as to his opinions.”
The burden was not upon Dr. Sullivan to prove a basis for his opinion. Rather, the burden was on the State to prove there was none and that Dr. Sullivan’s belief in his opinion was false, and this by two witnesses or one witness supported by strong corroboration.
I find no reliable evidence that Dr. Sullivan did not honestly hold the opinion he gave. Dr. Sullivan had not at any time testified to the contrary, certainly not explicitly so, and if he had, such testimony would not have sufficed to sustain a conviction. The police officers surely were not qualified to express an opinion, and moreover it does not appear that they heard all of Dr. Sullivan’s interrogation of Mackenzie. All the State can point to is the testimony of Dr. Corio:
“Q. Now, after the signing of this statement what examination, if any, did you and Doctor Sullivan give MacKenzie? A. He was given the same examination as the others, ears, nose and throat, his heart, his lungs, extremities, abdomen, signs for any external signs of any physical abuse.
*59Q. What did you find, Doctor? A. They were negative, findings were negative.
Q. Was he oriented? A. Tes, sir.
Q. Doctor, was there anything which you found in your examination which indicated to you John MaeKenzie was nervous, that he was moderately excited, that he could have been drugged, that he was in a controlled state and that if he wasn’t drugged he could have been in a hypnotic state? A. No, sir.” (Italics added.)
Further:
“Q. That is what I want, Doctor. A. Essentially negative means to me that there is nothing worth mentioning. In other words, there is nothing important enough to mention.
Q. Essentially negative you mean? A. We are talking about a :physical examination now, is that right?
Q. Well, I want to know what it means to you in any capacity. A. That is what it means to me.” (Italics added.)
Still further:
“Q. Were you told specifically what you should do? A. Outside of asking me to examine the men, to see if any signs of any physical abuse were present.
Q. Anything else said? A. Not to my knowledge, no, sir.
Q. What did you have in mind? Amplify what you had in mind when you examined Thorpe. What was your purpose? A. Well, as I testified before, there was a two-fold purpose, one was to see that the man had not been abused previous to the signing of the statement, and secondly to see that no abuse was exerted to make him sign this statement from a medical standpoint.
Q. That was all you were interested in, those two things? A. Yes, sir." (Italics added.)
And it was with specific reference to MaeKenzie that Dr. Corio testified that “one doctor will see one thing in a patient” and “another doctor will see something entirely different.”
For reasons already expressed, I would discount Dr. Corio’s testimony, but if it be granted the largest possible value, to wit, that his professional observations and opinion differed from Dr. Sullivan’s, I could no more conclude from that conflict that Dr. Sullivan is a perjurer than I would conclude that the tag should be placed on Dr. Corio.
Nor is it important whether we believe or disbelieve the testimony of Dr. Sullivan. On the record before us I could *60not say that I would accept his opinion. But the issue in a perjury case is not whether the trier of the facts believes the testimony accords with the ultimate truth. We cannot reach the question of truth until and unless there is testimony by two witnesses or one witness supported by strong corroboration that Dr. Sullivan did not believe in the opinion he expressed. And I cannot find that evidence on the record.
There is another aspect which gives me deep concern. MacKenzie either was or was not under the influence of a drug. If he was not, then we have the case as it was presented by the State. But if he was, there is nothing to talk about. True, it might still be maintained eruditely that a man may be guilty of perjury in telling the truth if he believed his testimony to be false, but in the circumstances of this case we would hardly let that proposition detain us from other work. The State offered no proof addressed directly to this critical fact, but rather chose to make the trial a battle of opinions. We do not have the question whether the State must produce all available evidence, 14 Am. Jur., Criminal Law, § 163, ¶. 881; 23 C. J. S., Criminal Law, § 1017, p. 390; rather, the question is whether it may produce no direct proof whatever and ask the court to start with a factual assumption against the defendant to the effect that MacKenzie was not under the influence of a drug.
We know MacKenzie claims to have been drugged and to have had a lapse of consciousness after smoking cigarettes received from a turnkey; and it seems to be agreed that two days later he became so violent he was placed in a padded cell. We know that in spite of his confession he was acquitted by a jury which considered that testimony and the testimony of the officers and others, including Dr. Corio, but apparently not including the questioned testimony of Dr. Sullivan. I refer to the murder trial not because the result of that trial is here evidential either way, 41 Am. Jur., Perjury, § 63, p. 36, but rather to show the existence of evidence to the knowledge of the State, and indeed evidence that apparently destroyed the probative effect of the confession. The State did not offer MacKenzie, the turnkey, or others who had *61custody of Mackenzie. Should not an inference of fact be drawn in favor of Dr. Sullivan? 1 Wharton, Criminal Evidence (12th ed. 1955), § 144, p. 270. In any event, I am not prepared to agree that where a factual issue goes to the heart of the State’s case, the prosecution may withhold all known evidence bearing upon it, and thus seek to have the court accept and start with the prosecution’s private determination that a drug had not been administered. In this connection, I cannot be oblivious of the fact that sodium amytol was given to Forrest and his statement taken almost immediately thereafter.
This brings us to the element of mens rea. The common law concept of crime required the “concurrence of an evil-meaning mind with an evil doing hand.” Morissette v. United States, supra (342 U. S. 246, 251, 72 S. Ct. 240, 244, 96 L. Ed. 288). A wrongful act was not enough; it had to be attended by a sense of wrongdoing, a culpable state of mind. Although a criminal mind is not an ingredient of some statutory offenses of a regulatory type, mens rea persists as an essential element of statutory crimes borrowed from the common law, at least in the absence of clear legislative expression to the contrary. The minimum mens rea is that described above; more is required as to some crimes. We need not consider what sufficed at common law or today suffices in other jurisdictions with respect to perjury. In our State we have two crimes in this area, perjury and false swearing. As to perjury, a high misdemeanor, the statute plainly provides that willfulness, sufficient for false swearing, is not enough for perjury. Rather, the perjured testimony must also be given corruptly.
“Corruptly” is not easily defined. In the light of our statutes it must be something more than willfulness. It does not require a dollar motivation, but it does connote an intent to obtain an advantage for some one. It imports a vicious or wicked motive. See 9 Words and Phrases, Corruptly (perm. ed. 1940), p. 778; 1 Burdick, Law of Crime (1946), § 3306, p. 494.
*62At the argument before us the State energetically rejected any suggestion that Dr. Sullivan arranged with defense counsel to commit perjury. The thesis below and here was that Dr. Sullivan testified truthfully at the first trial and on his direct at the second trial, but that when Dr. Sullivan testified that he asked the aceuseds if they were involved in the murder and that he did so because of his interest in justice, defense counsel railed at him, playing up the fact that he and the aceuseds were all Negroes; that thereupon Dr. Sullivan was embarrassed or persuaded that he had been used poorly by the State, and hence decided to “throw the case” to preserve his standing within his race. All of this is possible, but the record does not bear it out. The fact is that Dr. Sullivan was pushed into the role of an expert and admonished to speak in terms of probabilities, as I have related above; that in fact much of what was charged to be perjurious, including the opinions as to Cooper and Mackenzie, came out on the prosecutor’s redirect testimony and not on cross-examination. The fact is that Dr. Sullivan resisted efforts of the defense to lead him beyond the views he held. Eor example, when defense counsel, after vigorous examination which proved fruitful, sought by a sugary approach to get Dr. Sullivan to say that a man could smoke marijuana and believe it to be an ordinary cigarette, Dr. Sullivan testified firmly that in his opinion it was impossible. I have read this record with a willingness to believe that Dr. Sullivan told the truth as he saw it and without any corrupt purpose, however mistaken he might have been. Thus approaching his testimony, I cannot on this dry record find that he testified corruptly.
III.
A.
Dr. Sullivan testified that exhibit D-4 was a record he made at the time of the examinations of the men and that exhibit D-5 contained extensions thereof made a few days later. Upon objection, they were excluded.
*63Dr. Sullivan was charged with fabricating his testimony-on cross or redirect examination at the trial in 1951. He offered to prove the notations he made in 1948 to meet that charge. I cannot conceive of any rational basis for the rejection of the offer. Nor can I agree with the majority that competent and non-eumulative proof as to a vital matter may be excluded in the exercise of discretion.
The majority add:
“We think his refusal in this ease was warranted by the obvious unreliability of the memoranda which had a marked tendency to vitiate their usefulness.”
First, it should be noted that the State did not make that objection below nor did the trial court so find, but rather the State urged that the memoranda could be used only to refresh recollection, and this was the sole ground of rejection. The contention that the memoranda are unreliable was made for the first time in the brief of the State before us. I know of no principle under which an appellate court can deny a rudiment of a trial, the right to examination under oath, on the basis of factual assertions in a brief. I had thought that due process of law precluded that course.
And on what grounds do the majority find the memoranda unreliable ? First it is observed that D-4 “apparently * * * was not even referred to during the first murder trial.” If this is so, it would prove nothing. The majority also say that at the first trial one of the counsel referred to the paper as a prescription blank. D-4 contains Dr. Sullivan’s name and address. Whether it is a prescription blank, I cannot tell from the record, but that does not bear upon admissibility. The majority say it contains “some extraneous matter totally unrelated to the issues of the case.” Dr. Sullivan said this was so and offered to explain, but was not given an opportunity. The majority discuss Dr. Sullivan’s testimony of safekeeping and conclude “we have only the word of Sullivan, the party in interest, to vouch for these documents.” No more is necessary to require the receipt of the exhibits into evidence. We have no right to *64assume that if the issue tendered to us in the brief had been fought out, the trial court would have concluded the memoranda were not genuine.
Lastly, the majority say there was no harmful error because “Sullivan was permitted to testify from D-4 and D-5 during his trial and their contents, at least to some extent, were entered upon the record.” He was not permitted to “testify from D-4 and D-5” in the sense of being permitted to read any entry into the record. Rather, he was permitted merely to use the memoranda to refresh his recollection, and we here can see by comparing the answers given with the memoranda as printed in the record that entries in the memoranda were rejected in his testimony. But the trial court had no way of knowing that that was so. Thus the whole force of the offer was lost because the trial court did not have before it two vital exhibits in which Dr. Sullivan claimed to have recorded observations and opinions three years before the alleged fabrication and which bear upon the truthfulness of his testimony.
B.
If the majority found perjury in the factual observations, then the offer of the testimony of Manning and Delate as State’s witnesses in the second trial presents a significant question which may not be avoided by saying there was no showing that they were unavailable. The fact of unavailability was accepted by both sides and the trial court. The objection raised was solely the one which the majority decline to consider, and this was the single basis of the trial court’s ruling. In fact, earlier in the trial the prosecutor himself represented that Delate was unavailable, adding “I just make that statement for the information on the record,” which I interpret to have been intended to account for the failure to produce a known witness. Had there been the slightest suggestion below that the preliminary proof was desired, obviously it would have been forthcoming.
I will not lengthen this opinion by discussing the issue presented, since as I see this case, we are here concerned *65with medical opinions and I do not find the required proof of falsity with respect to them.
O.
The remaining issue relates to the exclusion of medical treatises upon which Dr. Sullivan testified he relied in reaching his opinions. I agree with the majority that they should have been received. I cannot agree that there is any room for discretion in that regard. Those treatises are constituent facts, indistinguishable from any other fact which led to Dr. Sullivan’s opinion, and surely bore upon the issue of criminal intent.
ETor can I concur with the statement of the majority:
“Sullivan testified his opinions were premised on certain facts he observed. The diagnoses in the treatises were obviously based on the assumed existence of the same symptoms. If these symptoms were not actually present in the murder defendants, Sullivan’s opinions were unwarranted and all the medical treatises in the world could not affirm his honesty.”
Here the majority appear to find perjury in the medical opinions upon a subsidiary finding of perjury as to observations. That approach not only departs from the trial court’s findings, but in addition assumes that the full bases of Dr. Sullivan’s opinions were spread on the record and that a reference to the treatises would have added nothing. It is more probable that if the offer had been received, there would have followed a plainer delineation of the bases of the opinions. In the muddled state of this matter, I cannot say that the exclusion was not prejudicial.
Eor these reasons, I would reverse the judgment as to all counts here under review.
Mr. Justice Heher and Mr. Justice Jacobs have authorized me to state that they join in this opinion.
For affirmance in part — Chief Justice Vanderbilt, and Justices Oliphant, 'Wacheneeld and Burling — I.
For reversal — Justices Heher, Jacobs and Weintraub — 3.