(dissenting). I hold the view that there was error in the denial of the accused’s application for a pretrial inspection of the confession attributed to him, but there is no showing of prejudice in the defense of the accusation on the merits. I am not persuaded that in the particular circumstances the ruling worked a denial of the essentials of a fair trial.
The trial judge seemingly entertained the opinion that a witness may not be interrogated as to a prior conviction of crime for the purpose of impeaching him under N. J. S. 2A :81-12 unless the cross-examiner be at the time possessed of competent proof to controvert a denial; and this I consider a fundamental misapprehension of the statutory rule of policy. In so holding, the judge informed the accused’s counsel that if they desired access to the “records of any court in this county they will be obtained for you at any time,” an obviously insufficient substitute for the right of cross-examination- — for a conviction of crime as an instrument of testimonial impeachment has no such local limitation — and contrary to the rationale of State v. Fox, 70 N. J. L. 353 (Sup. Ct. 1904), which I accept as a sound view of the statute.
*119But here, also, it is not shown that the ruling adversely affected the defense on the merits. Certainly, this is so as to the witness Boyd; and it does not appear that by this disposition the accused was in fact precluded from impeaching any other witness in this wise.
But there was, I would suggest, reversible error in the overruling of an objection to a question directed by the county prosecutor to the accused’s wife, recalled as a witness by the accused, as to an alleged incriminatory admission by the accused related to her by one Phyllis McNair.
“Q. Didn’t she (McNair) tell you that John (the accused) had told her he had beaten up a man that night? A. I remember her saying something like that.”
The judge, in so ruling, turned to the jury and said:
“I want to say to the members of the jury now that I am permitting this, not as any proof of the fact, but only insofar as it may tend — and that is for you to decide — to contradict this witness’ testimony. It is only for that purpose and that purpose alone.”
This was utter hearsay, on a crucial issue in the case, and therefore presumably harmful. I can find no rational ground for supposing that the evidence thus given worked no injury to the accused. True, on redirect examination the witness affirmed that McNair had not quoted the accused as saying “he had croaked a man last night,” and an objection to further inquiry by the State as to what McNair “said if you can remember” was made and sustained; yet the objectionable testimony remained for consideration by the jury, supplemented by the witness’ further testimony, later elicited by the judge, that McNair had quoted the accused as saying “he believed he and some fellow had a fight, and that was all.” The risk of harm is not so remote as to be excludable from the calculations of reasonable minds. There was no justification whatever for the introduction of hearsay so vital in its probable consequences.
And I find error of substance in the qualification of the request to charge that the accused had the burden of estab*120listing “by a preponderance of the evidence” the defense of intoxication of sneh degree “that his faculties were prostrated and he was rendered incapable of forming the specific intent to commit or attempt to commit robbery or sodomy,” a request charged as thus submitted but under the added injunction to the jury to use “great caution” not to give “immunity to persons who commit crime when they are inflamed by intoxicating drink.”
This qualification of the instruction as tendered and charged would reasonably suggest to the lay mind a burden greater than mere preponderance; certainly, the judge was not content to instruct in the terms of the long-established rule, but had in view a measurable restraining element going to the substance of the age-old formula, and it would not be safe to say that such was not the understanding of the jury. Compare State v. Mangano, 77 N. J. L. 544 (E. & A. 1909.) Refinements plainly import a modification of the text; if not, why amplify?
And for the reasons given in the dissenting opinion in State v. Bunk, 4 N. J. 461 (1950), it was reversible error to refuse to charge the accused’s requests for a direction that there must be unanimity in the verdict both as to guilt and punishment.
I would reverse the judgment and award a new trial.
Wachenfeld, J., concurring in result. For affirmance — Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan— 6. For reversal — Justice Heiier — 1.